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Who Gets the Farm? Part 5 – Your Optimal Outcome

By 7 February 2017Property settlements
Who Gets the Farm Part

Who get’s the farm? – Your Optimal Outcome

Neal Wood

This is the last in a series of articles about family law property settlement where farming and rural businesses are involved.  I wrote in the first article that the short answer to the question of who gets the farm as part of a family law property settlement is that there truly is no short answer.  Depending upon your involvement, the stage of your life and the state of your relationship, the outcome that you are looking to achieve can be one of the most important considerations.

The essential goal of any family law property settlement is to create legal certainty following the end of a relationship. After completing a property settlement each spouse ultimately obtains control of their own separate assets and liabilities with any previous joint property transferred one to the other or otherwise sold and divided.

In family farming situations the extent of the physical, financial and emotional connections created over a long period of time can be particularly difficult to unravel.  When it comes to a farm the individual facts and circumstances of each case and what is fair having regard to the contributions and future needs of the adults and children involved.

For example, if you are in partnership with an adult child that is about to enter into a new and untested relationship, there are steps that can be taken to protect the partnership from being drawn into a property settlement if that relationship fails.   If an agreement can be reached up front and recorded in a Binding Financial Agreement with the assistance of independent legal advice it is possible to limit the Court’s power to deal with the farm as part of a future property settlement if the relationship comes to an end.

If you have been in a relationship that has ended it may be that your highest priority is to ensure that there is proper recognition of the work of previous family members and the contributions they have made to the current wealth.  Generally speaking, if a party wishes to retain a significant asset or business like a farm in exchange for paying out the other party then a Court may readily be persuaded to provide an opportunity for that to occur.  How long that process be allowed to take and on what terms it should be permitted can vary significantly.  There are also issues to consider about what should happen in the meantime such as making sure the property is insured and that the overdraft and the mortgage continues to get paid while that is happening.  Depending on the circumstances it may be that any cash payment will be broken up over time.

If you have worked alongside a spouse on the farm for many years and raised a family together but your name has never been legally included on the paperwork it may be that your highest priority is securing your own financial security.  Again, depending on the circumstances there is scope for that to occur.  It may be that a separate parcel of land or a particular asset can be transferred or sold to meet the other party’s entitlement without having to sell off the entire farm.  If there are other investments like a share portfolio, investment property or superannuation these could possibly be used to meet the entitlements of the party that is going to be moving off the farm after separation.

If third parties are involved they may also come into play in completing the settlement.  It is possible to transfer parts of a real property to an adult child or related company or trust.  In exchange that party may contribute to borrowing the money needed to pay out another party.

While all of these options and considerations may seem daunting the reality is that no matter how complex matters seem at first, by working through it bit by bit and narrowing the issues in dispute there is a clear path to resolution and an end.  Be confident that the work that we do all the way along that process is directed towards achieving your optimal outcome, whatever that may be.

Our team of family lawyers in Toowoomba has a wealth of experience in a rural property settlement and can provide you with guidance and support every step of the way. Contact our family law office on 4639 0000 to make an appointment.

You can read Read Part 1 to 4 here:

Part 1Part 2Part 3 –  Part 4