Most people consider pre-marital agreements – “pre-nups” – to be unromantic, and they are often the farthest thing from anyone’s mind when planning their forthcoming nuptials.
For many in the farming community, the public perception of the “pre-nup” as something for urban business people can make pre-marital and post-marital agreements seem even less relevant.
However, as more and more people with an agricultural background are finding out, thinking about an agreement like this prior to getting married – or even afterwards – can help to save a lot of uncertainty and heartache should things not work out as planned.
This is especially true in a situation where a farm that has been in the family for generations is concerned, for example, or in complex cases where there are several families involved in the ownership and day-to-day running of a farm.
Whilst pre-nups are not strictly legally binding in this country, they are becoming more and more commonly seen in British matrimonial courts thanks to recent case law. A properly drafted pre-nup can indicate what parties’ intentions are in the event of a divorce, and these are now considered as highly relevant when a court is deciding how to proceed in a divorce case.
Pre-nups should not be viewed in a negative way; instead, the pre-nup should be considered as more of a planning tool. Through careful planning and preparation by a skilled solicitor experienced in dealing with farming cases, a pre-nup can be tailored to the exact needs and circumstances of each individual situation.
This is particularly important for a husband and wife involved in running a farm. On divorce, when a court looks at dividing up the assets of a marriage, the starting point is a 50/50 split. However, the average farm – where the assets likely consist of livestock, farming machinery, land, and the heart of the farm, the farmhouse – means that splitting up those assets between the husband and wife could make a farm unviable going forward.
This is a particularly daunting prospect for couples where either the husband or wife is not from a farming background, and so may not appreciate the intricacies and demands of a working farm.
In some circumstances, it can be argued that an inherited asset should be immune – “ring fenced” – from being included in the divorce proceedings, although this may be a difficult case to run where the matrimonial home is the inherited farmhouse and forms the basis of everyday family life on the farm.
More often than not, there are several generations and families involved in running a farm and it is important to ensure that their positions are also protected.
A well-drafted pre-marital agreement, written by an expert with experience of rural communities and the agriculture industry, can alleviate many of these concerns.
If it’s too late, or impractical, to sign a pre-marital agreement, then there is always the possibility of a post-marital agreement (often called a “post-nup”). Again, these agreements are not strictly binding, but they can be very persuasive in showing each partner’s intentions, and can help protect all involved from unnecessary and drawn-out legal battles which can jeopardise a farm’s everyday prosperity and productivity.
It is vitally important that each party should take independent legal advice before signing a pre-nup or post-nup, as otherwise this could affect its validity. It is also important to bear in mind that a court will not sanction or make a decision which is particularly unfair to one party, making the proper drafting of realistic and practical agreements an absolute necessity.
This is where getting the right advice from a specialist can help. Dedicated family law firms like ours have a wealth of experience in relation the drafting of these documents. We can provide expert advice to suit your needs, draft the agreement for you and take you through every step of the process.
The best pre-nups and post-nups can help provide peace of mind and help keep Britain’s farms running smoothly, no matter what happens to the farmer or her husband. With this in mind, it’s no surprise we are seeing more and more farmers coming to us for advice.
Written by: Katie O’Connell
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