Who gets the family farm?
There’s a lot of emotion and sentiment attached to a family farm, so when a couple who make their living from the land split up, it can cause a lot of angst. But who gets the farm? The farmer who may have inherited the property or the spouse who married in and are farming properties treated any differently to a normal property settlement?
The short answer is – No. Divorce settlements that involved a farm are approached no differently from other family law property matters. There is no special treatment of the farm, despite how and when it was acquired.
It’s important to note that the court considers the contributions of both the farmer, and the non-farmer spouse. The court views contributions of the spouse – such as homemaking, parenting, and even working on the farm – just as importantly as the financial contributions of the farmer.
Often there is an apparent conflict between the farmer being asset rich but income poor and the spouse needing a property settlement – that may leave little alternative but the sale of the farm, meaning land and assets handed down from previous generations can be divided and lost in a property settlement.
Farming couples who are separating should consider the following:
- Is the farm a partnership, company, trust, or a combination?
- How was the property acquired – inheritance or purchase?
- Any actual or potential third party interests such as siblings, parents or adult children
- Is the farm viable?
- Who owns the stock, plant and machinery?
- Who holds or owns water rights?
- Who expects to retain the farm?
- Determine real income – what does the farm pay for?
- Contributions by the spouse to farming endeavours
- Are there shares to consider – for example wheat board, co-ops etc?
Couples in a rural area who get divorced have a number of other complex and challenging issues to face. One parent will often want to relocate the children to another town, city or state. But the ability for both parents to remain living within close proximity to the children following separation is less likely in regional areas than in metropolitan areas.
Regional areas often lack the population, employment opportunities, housing and services required to enable both parties to remain in the area and support themselves financially.
Courts also consider the future earning capacity of the wife after separation and the earning capacity of the husband which in many cases may be his need to retain the farm, as well as ensuring a just and equitable outcome in each unique matter.
If you need to discuss issues regarding property settlement, or any other family law matter, get in touch with Michael Lynch Family Lawyers. Our family law experts can give you advice tailored to your situation. Call our office on: (07) 3221 4300 or email: [email protected]