Farming and the Law: Kate Beaven of Barker Gotelee on pre-nups and post-nups

MANY farming divorces involve inherited property which has been passed down through the years, providing each generation with a source of income and way of living.

Trying to resolve a farming divorce, where the farming business is the main asset, can be an incredibly complex task that requires inventive and tailored-made solutions.

Before a marriage, or even during a marriage, thought should be given as to whether there are any protective measures that could be taken, such as; pre-nuptial/post-nuptial agreements, trusts, tenancies, limited companies, etc. There is no absolute protection but some measures can be taken with a bit of forward planning.

At the forefront of the court’s mind is how fairness can be achieved in making financial provision for both husband and wife. Every attempt will be made not to destroy the farming business.

All property will be considered when identifying the matrimonial assets and that will include both assets brought to the marriage and assets acquired during the marriage. There are no set rules as to how inheritance should be dealt with, which is in contrast to some European countries where this is actually set out in their legislation. In England and Wales each situation is decided upon its own merits and we are guided by the case law.

The length of the marriage will be very relevant, particularly when considering the difference between pre-marriage assets and post-marriage assets. The longer the marriage, the more the distinction will be blurred. In the farming case of White v White, Mrs White wanted the court to take account of inheritance which went back 40 years, but the court rejected her approach saying the family assets had become so intermingled it was impossible to separate them. The House of Lords in White referred to the “yardstick of equality”; a move away from equality will be more compelling the shorter the marriage and the more inherited property there is.

With a long marriage the non-matrimonial property may have merged into matrimonial property over the years. This does, however, raise more questions than answers: when does a marriage become a long marriage? There is no fixed rule. There is a lot of discretion in farming divorces. Where possible it is useful for the husband and wife to ask their lawyers for a meeting based approach, this way everything is discussed round the table. Other professionals can also be involved. This approach helps separated couples retain control by making their own decisions, rather than relying upon the constraints of what a court can order.