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 from 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. Contributions by a spouse as homemaker and parentand contributions of labour towards the farm can be viewed as being as valuable asas financial contributions made by the farmer spouse..
Thefarmer may be be asset rich but income poor meaning there may be ittle alternative but there being a sale of the farm to give the other party their property settlement entitlement. Unfortunately, this may, mean land and assets that had been handed down from previous generations are divided and lost in a property settlement.
In farming cases, 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?
- Do third parties, such as siblings, parents or adult children have an actual or potential interest?
- Is the farm viable?
- Who owns the stock, plant and machinery?
- Who holds or owns water rights?
- Who expects to retain the farm?
- What real income is generated? What does the farm pay for?
- What contributions were made by each spouse to farming endeavours?
- Are there shares to consider – for example wheat board, co-ops etc?
Separating couples in a rural area have a number of other complex and challenging issues to face. One parent may want to relocate the children to another town, city or state. The ability for both parents to remain living within close proximity to the children following separation is more difficult 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 willconsider the future earning capacity of the non-farming spouse after separation. The Court will have to balance the farmer spouse’s desire to retain the farm to ensure their continued earning capacity whilstensuring the non-farmer spouse receives a just and equitable outcome. Each family law case is unique.
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]
