Why farming families will watch divorce law reform closely: Sarah Hewitt

Whilst such changes would, of course, impact every married couple in England and Wales, it’s worth remembering that some of the most significant divorce case law this century has dealt specifically with the breakdown of farming relationships.

Back in 2000, a House of Lords ruling on the end of Martin and Pamela White’s 36-year marriage established what became known as ‘the yardstick of equality’ when it comes to assessing the contributions made by breadwinners and individuals who remain at home raising a family.

The judgement’s impact was nothing short of seismic for the Whites and spouses living far from farmland.

There have been notable departures from that equality principle, each one illustrating factors which make farming divorces so different from those involving urban couples.

Chief among them is the fact that farmland and the livestock, building and equipment on it are usually the principal assets to be considered when a farming marriage ends.

Furthermore, the land itself has sometimes been in either the husband or wife’s family for centuries.

How to effect a fair financial settlement without limiting a farm’s future as a going commercial concern is often the central issue.

Despite evidence outlining the ‘hard, physical work’ done by a wife in another case (P v P), she received just over one-quarter of the family’s total assets because it was decided that an equal settlement would have required the sale of the farm itself, something which would have been unfair.

Departing from the terms of the earlier White ruling is possible because of the discretion open to judges in family law cases.

Yet that discretion can create enormous uncertainty for spouses and is something which the Government is keen to address in a review of the law on divorce settlements which itself comes a year after the introduction of ‘no-fault’ divorce.

That was intended to reduce the friction between separating spouses determining why their marriage has broken down.

Nevertheless, most disputes in divorce comes when husbands and wives are trying to divide their assets.

Conscious of that, ministers have asked the Law Commission to review whether the current law - which has been in place for half a century - is still fit for purpose

In particular, the Commission is weighing up whether family judges’ powers are too wide as well as the difference between non-matrimonial and matrimonial assets.

That latter point is important for farming divorces because inherited farmland has generally been treated as being distinct from non-agricultural assets handed down within a family, with greater weight given to inherited property in farming-related cases.

Changing that position, therefore, would have significant consequences.

The Law Commission is not due to deliver a scoping report until autumn next year but it would be sensible for families to review their affairs.

Legislative change may still be years away but any planning needs to be thorough if it is to protect the farms which are integral to their personal and professional wealth.

Sarah Hewitt is a Senior Associate Solicitor for Hall Brown