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Family Matters – Legal Considerations for Parents and Carers

Becoming a parent can also be all consuming, but there are a number of legal matters you should

Is my family farm “matrimonial property”?

Published: 10 May 2022
Time to read: 3 mins

What is “matrimonial property”?

“Matrimonial property” is everything acquired by you and your spouse (jointly or individually) from the date of your marriage onwards. It also includes any value accruing in a pension/endowment policy within that time.

Gifts from third parties are not “matrimonial property”, nor is anything you inherit. If you own the family farm, prior to marriage, then it is not matrimonial property.  If you are gifted the family farm by your parents, during your marriage, or you inherit the farm then, it is not matrimonial property.

The importance of how and when you acquire the farm

How and when you acquire the family farm becomes important if you separate and then subsequently divorce. This is because “matrimonial property” is anything acquired by you during the marriage, subject to the exceptions set out above, and still belonging to you at the date you separate. On divorce, your spouse can make a claim for a share of the “net value of the matrimonial property” (assets, less liabilities). Your spouse’s entitlement is a “fair sharing” of the net value of the matrimonial property. A fair sharing is usually an “equal sharing” unless there are special circumstances to justify another proportionate split. If the family farm is or becomes “matrimonial property” then it could be open to a considerable claim by your spouse.

Why should I be concerned?

During a marriage there will usually be some development and growth of a farm business. The business (and/or the farmland) can change in nature or ownership during a marriage. A pre marriage interest in a farm partnership (not “matrimonial property”) may convert into shares in a Farm Company (“matrimonial property”). Farmland that was inherited (not “matrimonial property”) may be sold to finance a new family home (“matrimonial property.”) This property that has been converted to “matrimonial property” can then be the subject of a claim by your spouse on divorce.

What can I do to protect the farm?

If you will be running a rural business or foresee restructuring of a family farm, during your marriage, get input from a family law solicitor on this and the other matters that might impact in the event of a divorce. No-one goes into a marriage anticipating it ending but it’s best to avoid future complications should things not work out the way you plan.

*This article featured in the May edition of Farming Leader.

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