Preserving your farm business in a divorce
COLLABORATIVE law is a different way of dealing with what, in farming businesses in particular, can be devastating – divorce.
Daniel Eames at Clarke Willmott, Taunton, is a family lawyer trained in collaborative law. He says it allows the farming partnership to continue to operate while looking at creative solutions and it can involve the trusted accountant and land agent – without them being caught in the cross fire.
It may also allow them to keep working with both spouses, and their wider families, once a divorce settlement is achieved.
Ordinarily, he points out, divorce could mean farms that have been in families for generations may have to be split up and sold, or heavily mortgaged to the point where the remaining farm operation is crippled.
And there can be other complications such as spouses being equal partners in the farming partnership and/or being in partnership with other family members and ‘adult children’.
“The Courts are a blunt and inflexible tool for resolving problems that beset a divorcing couple who are in a farming partnership together,” says Mr Eames.
“The Court process involves a set timetable and values are taken as a snapshot in time which do not always reflect the seasonal variations of farming or the timing of state subsidies. Generally, Courts do not understand single farm payments and other allowances or how vital subsidies can be lost if land is sold as a result of a court order.
“In the collaborative law process, the parties and their lawyers sign an agreement which states they won’t go to Court to resolve the issues between them.
“If either client wishes to go to Court then both lawyers have to stop acting and new legal advisers have to be instructed with all that entails in terms of wasted time and cost. This encourages everyone to stay at the table and keep talking knowing that if a solution cannot be achieved then everyone will have to start again.”
Another feature of collaborative law he points out, is that the parties set their own agenda and timetable and neither the court nor the lawyers dictate what issues are to be addressed or how quickly or slowly.
“This flexibility allows the parties to focus on what they wish to achieve and to look at joint goals such as maintaining a farm business for their children which sometimes in the traditional process can be relegated and overlooked in the heat of a court battle.
“In collaborative law, the parties are encouraged [and the lawyers trained] to look for areas of common ground as these are the building blocks to a settlement.
“In traditional litigation, lawyers are trained to differentiate and highlight things that one spouse has done better or contributed more to than the other,” he says.
“This is less likely to lead to settlements which are acceptable to both parties or which deal with wider concerns such as preserving a family farming business as each lawyer is focused on the needs/rights of their own client.
“In collaborative law, the lawyers are working as a team to try to find solutions which meets the needs and aspirations of both spouses.
“Many specialist family lawyers are trained in collaborative Law but its profile still needs to be raised.”