Twenty-five years after the people of Ireland voted to lift the country’s long-standing divorce ban, we ask leading family law advocate Ailbhe Burke about the factors to consider in an agrarian divorce.
From an agricultural perspective, how has divorce changed since the divorce referendum was passed in 1996?
AWAY: The most important change in the courts’ approach since 1996 has been their efforts to achieve a “clean break” for the parties to divorce.
When divorce was first introduced, the courts were much more inclined to award maintenance for a dependent spouse. Now, subject to available resources, the courts will take steps to seek independence and finality where possible.
Another important change was the passage of the referendum that allows parties to file for divorce if they have been separated for two years. Previously, the parties had to be separated for four years.
While waiting for the four years to elapse, many people had to apply for a legal separation to legalize their separation.
The benefits of the new regime are threefold:
■ Parties tend to wait before filing for divorce in order to save legal fees if no court separation and divorce is pursued;
■ Once a divorce is granted, it is complete and final (apart from alimony), so one spouse cannot return for a second bite of the cherry if the other inherits or finds money
■ And the parties can remarry after a divorce.
What are the key factors that can affect the outcome of a divorce involving a family farm?
AWAY: Understandably, farmers are always keen to protect land that they have inherited or that has been in their families for generations.
The courts have a duty to provide reasonable care for the parties, but this does not necessarily lead to a redistribution of wealth.
Property that is inherited or given as a gift is treated differently from property that the parties acquired together during the course of their marriage.
When assessing the need for proper care over the last few years, the courts are careful to ensure (as far as possible) that both parties have housing, a source of income and some pension provision.
Furthermore, if there is excess wealth and the primary wealth is inherited, it becomes increasingly unlikely that it will be divided between the parties.
I find that if a farmer comes to me and has already left the family home, leaving the spouse and dependent children inside, it will be more difficult to get him back in.
Even if he’s already paying the mortgage and utilities for the house and family support, a precedent could be set and he could be stuck with it.
However, if the family home is on a plot cut out of the farm and there are young children there, the mother and children may well stay there, but the ultimate outcome really depends on the circumstances and the existing assets.
Another factor I have come across in farmers is that when farmers have to work early mornings and evenings, access with the children can be difficult to arrange.
Are prenuptial agreements used in agriculture and do you recommend them?
AWAY: Pre-nups are not officially recognized under Irish law but I would still strongly recommend doing them as they can be persuasive in court in the event of a subsequent separation/divorce.
There are three conditions that must be met, namely that each party obtains independent legal advice, all assets and income are fully disclosed, and the marriage contract is signed at least 21 days before the wedding date.
Interestingly, cohabitation agreements are recognized by law, but prenuptial agreements do not enjoy the same guarantees.
Is it that the legal department works on the assumption that a woman who marries into a farm could get a third in a divorce?
AWAY: It really depends on the circumstances of the case, earlier High Court case law suggested a woman could get a third of the farm’s value, but that seems to have been eroded in recent years.
In 2016 there was a case where the wife got between 11 and 12 percent.
However, the cases before the High Court tend to be high net worth cases. If you were dealing with an unprofitable small farm, a wife may receive a larger percentage of the property’s value.
Another factor to consider is if a farm is shared, would this negatively impact the farm income that the family as a whole relies on? If this is the case, the court will try to prevent a business from becoming unprofitable.
So is “the wife” more or less protected since divorce was legalized?
AWAY: Section 20 of the 1996 Act recognizes the contribution made by a spouse in looking after the household or family. It also recognizes the impact childcare can have on a career. It does not define the spouse as “the wife.”
But do they benefit financially in the end? I have to say, and this applies in general, not just to farmers, that I believe that the primary caregiver’s contribution and the sacrifices made will never be fully compensated, but that is just my personal opinion.
I think that with time since the advent of divorce and the buoyant labor market, women are expected to mitigate their loss and, given the drive for a clean break, they cannot expect their husbands to support them indefinitely To pay alimony.
Has this become an obstacle to wives seeking divorce?
AWAY: Absolutely it’s a big concern, I would have a lot of people come to me in unhappy marriages who want to escape but they are very nervous about how they will fare financially after a divorce.
Many tend to put up with an unhappy marriage for the financial security it gives them.
It’s a sensitive area, sometimes women are the breadwinners of the family and it’s the husband who stays at home or sacrifices his career, so it can’t just be about ‘wives’.
What advice would you give to someone considering a divorce?
AWAY: As soon as there are cracks in a marriage, seek professional advice.
Even if you do agree to mediation (which I strongly recommend), you should first speak to an attorney to learn the likely outcome if the case goes to court.
I urge the parties to try to keep things civil and reasonable with one another. If issues such as access can be agreed, there will be a huge saving in legal fees.
To minimize legal fees, parties should fully disclose their assets when necessary.
Don’t withdraw money from bank accounts to hide it; it will all come out in the discovery process, and financial misconduct can be prosecuted in court.
I try to encourage the parties to focus on the big picture and the bottom line and not allow the bumps along the way to fuel relationships and jeopardize a resolution.
In our Collaborative Law Training, we were advised to encourage clients to take their ex-spouse to do the first dance at their daughter’s wedding.
A lofty ideal perhaps, but one that we should all work towards.
Ailbhe Burke is Associate Solicitor at Sweeney and Co in Galway and Prominent Member of the Law Society’s Family and Child Law Committee
https://www.independent.ie/business/farming/legal-advice/a-farmhouse-divided-everything-you-need-to-know-about-what-happens-when-farmers-divorce-42002253.html A farmhouse shared? Everything you need to know about what happens when farmers get divorced