Relationships unfortunately break down and it is in everybody’s interest (particularly where there are children), to try to deal with the hurt, disappointment and real upset in a manner that is as calm and non-confrontational as possible. Patrick J Farrell and Company are a firm of solicitors advising on farming and family law. Separation, divorce and maintenance can have significant implications for the family farm.
Solicitors can assist in helping to keep everybody focused on the important issues that have to be thrashed out and agreed, without getting bogged down in blame and recrimination. It is sometimes hard for clients to hear that a Judge really doesn’t want to know about the details of the hurt caused by either party. The Judge wants to narrow the issues and decide about maintenance and access where children are involved, and the division of assets.
There are a number of issues that farmers need to know:
1. Once a married couple reside in a home it becomes a Family Home whether the title is in the sole name of one spouse or not. This means that the house cannot be sold or mortgaged without the consent of the other spouse.
2. If your relationship with your spouse breaks down but you continue to have a good relationship with your wife or husband, then it should be possible to agree the terms of your separation in a Deed of Separation. This Deed can set out everything that is agreed including terms of access, maintenance of a spouse and children, the division of property and taxation status. It can also set out the parties’ intentions regarding pensions, but where there are substantial pensions then the Trustees of the Pension Scheme will require a Pension Adjustment Order from the Court to alter the payments under the scheme.
3. If it is not possible to agree the terms of a Separation Agreement, then after one year it is possible to issue Judicial Separation Proceedings. This involves a Court application most often to the Circuit Court but depending on the value of the assets, it may be a High Court action. The Family Courts are extremely busy and it can take a considerable time to get the matter before a sitting of the Court. However the vast majority of cases are settled without the necessity of going before a Judge for a decision. As with all litigation, if you settle the matter outside the Court you have an input into what is agreed. If you opt to go before a Judge then it is out of your hands.
4. The results of a Separation Agreement and An Order for Judicial Separation are the same. You are legally separated. You can only have one or the other.
5. You can seek a Decree of Divorce under Irish Law if you have been living apart for four out of the previous five years. Therefore if you have not lived together for four years it is possible to apply for a Divorce never having signed a Separation Agreement nor gotten an Order for Judicial Separation.
6. It is not the case that a family farm will automatically have to be sold if the marriage breaks down. The situation and facts will be different in each case. The contribution of each spouse will be taken into account including the financial and the personal contribution of each party within the marriage and family, particularly where there are children. The length of the relationship and marriage is also a factor together with the ongoing financial prospects and ability of each individual spouse.
7. There are very few hard and fast rules but where there are children involved, the Courts will at all times ensure that “the best interests” of the children is the basis for any decisions made.
8.There are many solicitors who have trained as mediators (including our own Helen Coughlan) and this assists in negotiations being less confrontational and the whole process being less adversarial.
9. There is also the option of dealing with a marriage breakdown collaboratively. We have an Association of Collaborative Solicitors in County Kildare and our family law practitioner in Patrick J. Farrell & Co. is a member of that Association. The concept involves all parties and their legal advisers sitting down together to discuss the issues. See our Family law section for further information.