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In the first instance no they are not! The law in England and Wales concerning dividing assets and liabilities on divorce is exactly the same whether the respective spouses are living in suburbia or the countryside. The starting point or “yardstick” is equality with consideration given to a number of factors in order to help in determining what is “fair”.
It is however when applying the “fairness” criteria that farming has its own particular differences and complexities which include the following:
Must there be a sale?
Courts do their best in farming divorces to find solutions which are fair to both spouses and which do not necessitate a sale. However this requires firstly a full valuation of all the assets including obviously the farm but also assets not immediately related to the farmhouse and land such as other savings investments and pensions. Of significance is consideration of the needs of the spouse leaving the farm (usually-but not always-the wife) including their housing needs and whether or not those “reasonable needs” can be met in all the circumstances without a sale of some or all of the farming assets. It is important to bear in mind that in a longer marriage those needs will be assessed generously and a sale may be required in order to achieve a fair outcome.
The wish for the remaining farmer to preserve the farm for future generations whilst entirely understandable will not of itself prevent a sale although full consideration will be given to their ability not only to raise money but also realistically to pay back any additional borrowings. In other words is a “buy out” realistic or would it lead inevitably to a sale in the future given the profitability of the farm overall?
Claire Rutter comments: "As with the sale of any family business on divorce it is vital to take into account the viability and integrity of that business following separation and the inevitable consequences of divorce including careful consideration of tax consequences.
"In summary however it cannot be assumed that a farm is “protected” nor that it will be “preserved” for the remaining farming spouse – it will depend on many factors and advice and assistance from specialists in farming divorce is essential."
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