Ask a solicitor: How much of the farm might I need to sell in a divorce?

My marriage has broken down, and whilst we continue to live together in the same house, we have had no relationship for a number of years. My spouse has recently contacted a solicitor, and, I understand, is potentially going to bring divorce proceedings against me.

We live in the family home, which is across the road from the farm. I built a house there a number of years ago when I inherited the lands from my father. I have also purchased further lands, which are in a separate location, since we got married. My spouse worked part-time over the years.

What is the likely outcome here? Is there a possibility that a Court would force my lands to be sold?

Dear Reader,

I am sorry to hear that your marriage is breaking down. The legal position in respect of providing for the parties in a marital breakdown is that proper provision has to be made. Section 20 of the Family Law Divorce Act 1996 state that the Court shall ensure such provision as the Courts consider proper having regard to the circumstances that exist will be made for the spouse and any dependent members of the family concerned.

They will consider a number of factors, including the parties' income earning capacity, financial needs, standard of living prior to the proceedings being instituted, and any conduct and accommodation needs of the spouses. 

In family law proceedings, both parties must complete a document known as an Affidavit of Means, which sets out their means in detail, including any assets they own, income, liabilities, and monthly expenditures.

The Affidavit will also include details of any financial assets and details of pensions. Under family law legislation, the Court has powers to make a number of orders, including a Property Adjustment Order, a Pension Adjustment Order and an Order for Payment of a Lump Sum and orders for spousal and maintenance of the children. 

I note from your email you have indicated that two of your children are in college and children are deemed dependent until they are 23, if they remain in full time education or 18, if they are not in full time education. Based on what you are saying, it is likely that your three children are possibly still dependents.

It is likely that an order will be made that you have to pay maintenance in respect of the children, if they continued to live with your spouse whilst they remained dependent. If your spouse is financially dependent, they may also make an order that you have to pay spousal maintenance. 

There is not a clear legal position that a spouse is entitled to a certain percentage of assets or income in the Republic of Ireland, and it is entirely dependent on the facts of the case. Property Adjustment Order is an Order wherein the Court that an asset of one of the parties is sold or transferred to another party. The Courts will be reluctant to remove a party that has primary custody of the children from the family home.

In respect of the farm, the Court would be reluctant to make an Order that the farm has to be sold if it is your sole livelihood, but the Courts will have to make provision for the other party and the typical way that this could be done is that a lump sum payment might need to be made to one of the parties and they may make orders that some of the lands need to be sold to facilitate this. 

Typically, the Court will consider evidence from accountants and agricultural experts with respect to the viability of the farm and will look at the overall picture before making appropriate orders. At a minimum, it is likely that they will want to ensure that your spouse is adequately provided for, including that she would have a house to live in going forward.

I would advise that you contact a solicitor and take advice here. Please note that in respect of family law proceedings there are numerous opportunities to enter into negotiations in which a settlement can be reached by consent which would then potentially be ruled on by a Judge on the basis the Judge is satisfied that the settlement makes proper provision. It would be worth considering this option.

Stephen Coppinger is a solicitor practising in Walsh & Partners, Solicitors and Commissioners for Oaths, 17, South Mall, Cork.  Walsh & Partners also specialises in personal injury claims, conveyancing, probate, and family law.

Email:  info@walshandpartners.ie 

Web: www.walshandpartners.ie

• Disclaimer: While every care is taken to ensure the accuracy of the information contained in this article, solicitor Stephen Coppinger does not accept responsibility for errors or omissions howsoever arising, and you should seek legal advice in relation to your particular circumstances at the earliest possible time.