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Entries in Divorce and Separation (27)

Wednesday
Nov212018

Farming Divorces and how not to lose the Farm

Farmers often do not get the credit they deserve. They grow the crops and raise the livestock that feed us all. Most of the farmers we meet work long hours, are exposed to the elements, and have reducing margins. Added to which, many farmers are custodians of land passed to them through the generations. They carry a heavy burden of responsibility.

Recent cases have highlighted the risk that a Divorce presents to family wealth for dynastic farming families. Although courts can take account of the source of the wealth, it is able to make awards that invade non-matrimonial assets. Divorces involving family farms are often complex and it is important that you seek advice from professionals experienced in this area.  

Decisions made concerning the farm’s succession plan, development or structure, during or before marriage, can have significant (and often unforeseen at the time) negative consequences in a Divorce. We regularly provide farming families with advice that draws upon our specialist Private Client and Family Law teams to ensure that families fully appreciate and understand the wider effects of any decisions made by them concerning the family farm structure. 

Here are six points to consider:

  1. Transferring land into joint names: often for perfectly sound estate planning reasons farmers are encouraged by professional advisers to transfer land or property assets to their adult children or to extended family. Please note however that these assets (once transferred) are then arguably ‘matrimonial’ in nature and therefore subject to the sharing principle in Divorce.
  2. Pre-nuptial agreements: pre-nuptial agreements can seek to protect the dynastic farm from claims in Divorce. The current custodians are often best placed to insist that their child or family member enter into a nuptial agreement to protect family assets.
  3. Making your spouse a Shareholder of a Limited Company or a Partner within a Partnership: for tax reasons you may be advised to appoint a spouse as a Shareholder or Partner in the family farm. Once that party has been given an interest in the business this may mean buying back their share or interest in any Divorce negotiations.  
  4. Wills: it is essential that you make a Will, and review this throughout your lifetime, in order to ensure that your estate passes to your chosen beneficiaries in the event of death.  Failure to have a Will means that your estate will pass in accordance with the rules on Intestacy and can lead to additional costs and delay in administering the estate.  Within your Will you can name your executor and trustee.  You can also consider succession planning for tax purposes and make reasonable financial provision for your dependents.
  5. Keep Records: having a record of how you acquired an asset and the contributions you have made prior to, and during, the marriage can assist with supporting or resisting any financial claims in a Divorce.
  6. Get Advice:  in the event of an impending Divorce or separation, it is imperative that early professional advice is sought before any assets are distributed as part of a financial settlement.  In these circumstances, we commonly liaise with other trusted advisors including accountants, land agents and financial advisors.

The Family team at Greene & Greene has a wealth of experience and a proven track record of success in farming cases.  The team is also able to call upon specialists in the Agricultural Property and Estate Planning teams to deliver creative and bespoke solutions.

If you require any further advice regarding a Divorce or separation involving farming assets then please contact Emily Woodhouse (emilywoodhouse@greene-greene.com or 01284 717459).

For more information on the services offered by Greene & Greene Solicitors please visit www.greene-greene.com and follow on Twitter @GreeneGreeneLaw.

This article was first published in the EADT Rural Review - 29th September.

Wednesday
Jul252018

Stand by your man?

  1. The Respondent prioritised his work over home life and was often inflexible in making time available for the family, often missing family holidays and events.
  2. The Respondent did not provide the Petitioner with love, attention or affection and was not supportive of her role as a homemaker and mother.
  3. The Respondent suffered from mood swings, which caused frequent arguments.
  4. The Respondent was unpleasant and disparaging about the Petitioner, both to her and their family and friends.

Are these examples of one person behaving in such a way that the other cannot reasonably be expected to continue living with them?

Until the case of Owens v Owens, first heard in 2016, most divorce lawyers would have said this was sufficient.

English law does not recognise so called “no fault” divorce until parties have been separated for two years and only then if they both consent. Otherwise it is necessary to wait for five years to divorce without blaming the other party.

Often one party has to rely upon the other party’s unreasonable behaviour in order to begin divorce proceedings straightaway. English family lawyers have for many years advised their clients to draft allegations of unreasonable behaviour as mildly as possible so as to avoid creating further animosity, especially where there are children involved.

Mr Owens objected to his wife’s divorce petition based upon his unreasonable behaviour and maintained the marriage had not irretrievably broken down. At the initial hearing the Judge agreed with Mr Owens. He held that the allegations made by the wife were “at best flimsy” and they were “all at most minor altercations of a kind to be expected in a marriage”.

Mrs Owens appealed arguing, amongst other reasons, that the Judge’s decision was wrong as he had failed to assess her subjective view of the husband’s behaviour and the cumulative effect upon her of that behaviour.

The case came before the Court of Appeal in 2017. The appeal was unsuccessful. The Judges however made clear their dissatisfaction with the current legal position. In the words of Lady Justice Hallett “try as I might, I cannot find a legitimate basis for challenging the judge’s conclusions”.  She continued “I very much regret that our decision will leave the wife in a very unhappy situation…On any view, the marriage is over”.

Mrs Owens’ appeal from this decision was heard by the Supreme Court on 17th May 2018 and judgment was given on 25th July 2018. The Supreme Court has also dismissed Mrs Owens’ appeal.

The Supreme Court has described the case as “very troubling” and “generating uneasy feelings”, but has acknowledged it is not for the Court to change the law laid down by Parliament. The Court has suggested Parliament may wish to consider whether to replace the current law.

The results of a study by Professor Liz Trinder at the University of Exeter, which was funded by The Nuffield Foundation, found that divorce petitions are often not accurate descriptions of why a marriage broke down. In addition, the use of fault may trigger, or exacerbate, parental conflict, which has a negative impact upon children. The study also found no support for the common argument that allowing fault may protect marriages because having to provide a reason for the divorce encourages spouses to think twice about separating.

Resolution, an organisation representing 6,500 solicitors and other professionals involved with family law issues, will continue to lobby Parliament for the introduction of no fault divorce, which is already available in many countries including Australia, the USA and Spain.

Resolution propose a divorce procedure whereby one or both partners can give notice that the marriage has broken down irretrievably. The divorce can then proceed and after six months if one or both parties would still like to proceed the divorce is finalised.

All members of the family team at Greene & Greene are Resolution members and support the introduction of “no fault” divorce.

Mrs Owens will now need to wait until February 2020 to divorce Mr Owens, being the fifth anniversary of their separation.

For further advice following a relationship breakdown please contact Melanie Pilmer, solicitor in the Family Team at Greene & Greene on 01284 717418 or melaniepilmer@greene-greene.com.

For more information on the services offered by Greene & Greene Solicitors please visit www.greene-greene.com and follow on Twitter @GreeneGreeneLaw.

Friday
Jan052018

Divorce - Don’t leave me this way

Act One – cupid strikes

Zoom, just one kiss and then my heart went boom. Girl (or boy) you look wonderful tonight. You’re beautiful, you’re beautiful, it’s true. I have never had such a feeling of complete and utter love. Going to the chapel and we’re gonna get married. Love is all you need.

Final Act – the end

I hate you so much right now. Shoot that poison arrow. What’s a matter you? Got no respect? Argh… shaddup-a you face! You picked a fine time to leave me Lucille. D.i.v.o.r.c.e

If, like us, you are more than a little sceptical of the myriad of headlines announcing that today, tomorrow or whenever is ‘D-Day’ and the soundtrack to your life is most definitely not songs selected by the self-serving writers of the press but you have issues with your relationship, then why not talk to someone who…

  • Listens to you and will help you find solutions that are best for you and your family
  • Will steer you towards a collaborative (non-confrontational) approach to addressing the issues that arise on a relationship breakdown
  • Are members of Resolution – first for family law – and who follow their code of practice
  • Have specialists who can offer Mediation, Collaborative Law, Round Table discussions and (if required) court based solutions.

If you require any further advice regarding divorce or separation please contact Stuart Hughes (stuarthughes@greene-greene.com or call direct on 01284 717493)

For more information on the services offered by Greene & Greene Solicitors please visit www.greene-greene.com and follow on Twitter @GreeneGreeneLaw.

Wednesday
Apr192017

The hidden cost of Divorce

If you are separating, issues about tax may not be high on your list of concerns.  Your priority may be whether you can keep your home or, if your home is to be sold, whether you will have enough money to buy somewhere else. However, tax issues could have a significant effect upon your assets and should not be ignored.

Capital Gains Tax

This can be an issue, particularly if you have a number of properties.  We frequently see couples who wish to wait until they have been separated for two years before divorcing.  That can of course be an amicable way of dissolving the marriage, but you need to be aware of potential tax pitfalls.

Transfers between husbands and wives in the tax year of separation can happen on a “no gain no loss” basis, meaning there will be no Capital Gains Tax payable.  This may be difficult to achieve if your separation occurs close to the end of the tax year. 

If transfers of properties, other than the former matrimonial home, do not take place within the tax year of separation then Capital Gains Tax may be payable by the person disposing of their interest to their spouse.  This could lead to a considerable reduction in the assets available to be divided between you.

In relation to the matrimonial home, Main Residence Relief may be available if one party transfers their share to the other, but the disposal must take place within 18 months of the property ceasing to be the other party’s main residence. After that time there are further restrictions if the transfer is to avoid a charge to Capital Gains Tax.

Stamp Duty Land Tax

Once again, there can be issues that you may not have considered, particularly if you intend to wait for a period of time before divorcing.

For example, a couple may separate and the wife may remain living in the matrimonial home, perhaps with the children.  The husband may be in a position to buy his own property and want to do so, rather than paying rent until the time that financial matters are finally resolved.

The husband needs to be aware that he would be acquiring a second property and the purchase of that property is likely to be subject to an additional 3% Stamp Duty Land Tax charge.  On the purchase of a property for £500,000 this would result in Stamp Duty Land Tax of £30,000 rather than £15,000 that would have been payable if the additional charge had not arisen.

It may be possible to reclaim that additional tax payment if that property then becomes the buyer’s main residence within a 3 year period.  However, as can be seen, it will cause a significant increase to the up-front costs involved.

You also need to be aware that a Stamp Duty Land Tax charge applies to owning more than one property whether those properties are located in the UK or worldwide.  Any holiday home owned by you may also cause difficulties.

If you require any further advice regarding divorce or separation please contact Stuart Hughes (stuarthughes@greene-greene.com or call direct on 01284-717493)

The Family Law Department has considerable experience in dealing with cases involving tax issues and are assisted by specialist tax Solicitor Natalie Stoter (nataliestoter@greene-greene.com 01284- 717462)

For more information on the services offered by Greene & Greene Solicitors please visit www.greene-greene.com and follow on Twitter @GreeneGreeneLaw.

Monday
Jan162017

Top Tips on Separation

The breakdown of a relationship is never easy, especially from a legal point of view. If you are thinking about separating from your partner, our “top tips” can help make the process a little less stressful…

Sort out your finances

Money can cause all sorts of problems during a relationship, let alone after separation. Get your finances in order early on to avoid unnecessary angst.  

If you have joint bank accounts or credit cards consider whether these should be closed or cancelled. If you intend to keep using them you will need to agree how much money can be spent and who will be responsible for paying any debt. You should also consider restricting any overdraft facilities.

If you have a more complicated financial situation it may be sensible to seek advice from an accountant. They can provide advice on tax consequences following the transfer of property or company assets.

Consider the needs of the children

Arrangements for child care including when and where the children will spend time with each parent should be discussed and agreed particularly if you are about to separate..

You will need to consider how joint decisions about children will be made in the future. A parenting plan could be drawn up (see www.splittingup-putkidsfirst.org.uk).   This can be as detailed as required and can also include issues such as how and when the children would be introduced to any new partners. 

Ideally the amount and frequency of Child Support payments should be agreed as in default an application to the CMS for a Child Maintenance Service assessment may be necessary.  If there are no children or if Child Support payments are insufficient to cover one party’s financial needs then thought should be given to any additional support that may be needed by way of Interim Spousal Maintenance. 

Think about getting help

A lot of people are reluctant to consider getting help, but counselling can often be very helpful in coping with the stress of relationship breakdown.

If you think it could help to try and get the relationship back on track thought should be given seeing a marriage counsellor. If the relationship is at an end then a family therapist, family consultant or counsellor could help work through issues surrounding the separation and communication.

Work out sensible living arrangements

Will both parties still be living in the house together?  Sometimes this will be a necessity.  Consider any practical steps that can be taken to make this easier.  Alternatively, if one person intends to leave then who will that be and where will they go?  Importantly, consider how two households would be funded.

Update your Wills

Consider whether the terms of your will are still applicable post-separation. You may want to remove certain beneficiaries. You should also consider whether any death in service benefits under any pension provision need to be amended.

Seek legal advice early on

We deal with things like this every day and have considerable experience in these matters. We are committed to providing constructive dispute resolution options and sensible advice. Seeking legal advice early on can help avoid problems down the line.

If you require any advice about separation contact Melanie Pilmer (melaniepilmer@greene-greene.com, telephone 01284 717418) or another member of the Family Team at Greene & Greene for an initial discussion.   For more information on the services offered by Greene & Greene please visit www.greene-greene.com and follow Twitter @GreeneGreeneLaw.

Friday
Nov042016

Divorce and the Farming Family

 

 The damaging effects of divorce are often felt more acutely in cases involving farming families: especially so where the farm has been held within one family for generations.

Often farming businesses will involve Partnership or Corporate Structures, land may be co-owned with extended family, land ownership may be within or outside of business structures and various land or property assets may also be held in Trust.  These can all complicate matters.

Typical questions that arise are:

  • How can the assets be divided fairly where a farm has been passed dynastically to one spouse through the generations?
  • What weight will the court apply to the financial and non-financial contributions of the non-owning spouse?
  • Will the court force a sale or transfer of land and property?  

The court’s approach can be unlike other cases and present unique challenges.

The court is tasked with arriving at a fair outcome and must meet the parties’ (and any dependent children’s) reasonable needs. In doing so the court will consider whether the farming family intended that the farm should be passed down through the generations. The court will have to consider whether the farming family can and should retain the farm (in so as far as that is possible) even if that means an overall unequal division of assets. Numerous other factors including the standard of living enjoyed by the parties during the marriage can also be taken into account. 

Funding a settlement may require finance to be raised against the retained farm. Land may need to be sold in order to retain the majority of the farm to pass on to future generations.  Many farming businesses experience cash flow and liquidity issues which can make it difficult (or impossible) for income generated from the farm to satisfactorily meet the needs of two separate households following separation.  

The Family team at Greene & Greene has a wealth of experience and a proven track record of success in farming cases. The team is also able to call upon specialists in the Agricultural Property and Estate Planning teams to deliver creative and bespoke solutions.

Divorces involving family farms are often complex and it is important that if you find yourself in this position you seek the assistance of a lawyer experienced in this area. 

If you require any further advice regarding a divorce involving farm assets then please contact Stuart Hughes (stuarthughes@greene-greene.com or 01284-717493) or Melanie Pilmer (melaniepilmer@greene-greene.com or 01284-717418) who will be pleased to assist you.  For more information on Greene & Greene please visit www.greene-greene.com or follow @greenegreenelaw on Twitter.

 

(Editorial first published in East Anglian Daily Times Rural Review, September 2016)