As a family lawyer based in the South West of England a significant proportion of my client base comes from the farming and rural business sector. Working with colleagues from across the practice groups, we do all we can to help our clients preserve and grow their businesses (which is particularly important given the potentially seismic changes facing the industry in a post-Brexit environment).
Within the context of a relationship breakdown, the dynamic when a family all live and work together can bring unique challenges.
Coupled with that is the nature of the financial assets: the farm, often passing through numerous generations, not only has a capital value but also will typically generate an income for the majority of the family. Unlocking that value and income in a divorce context is difficult and can paralyse the operations of the farming business until it has been resolved – something which can take years in a worst case scenario.
To protect against these risks owners of farming business are increasing exploring the idea of pre-nuptial agreements. At first blush, people may still believe they are the preserve of the famous and uber wealthy. In fact, pre-nups are perfect for the farming sector: they can protect and preserve the farming asset whilst, at the same time, ensuring that there will be a fair provision for the spouse in the event that the relationship was to break down. That means that the couple, as well as the wider family, can have certainty and clarity to protect them all as well as the future of the farm.
In my experience, pre-nups that are pitched in this way are well received by everyone and the person marrying into the farming family will often recognise and respect the need to preserve the business for the wider family and future generations and, in return, ensuring that their needs are met so they also have security for themselves.
Most commonly, the immediate challenge for any client is how to broach the topic with their future husband or wife which can be a difficult subject to raise.
To help with that challenge, we have been working with farming families for a number of years to make a pre-nuptial agreement a pre-condition to joining the partnership by making it an explicit requirement in the partnership deed. In that way, before a son or daughter can join their parents in the partnership (and through that, potentially gaining an interest in not only the business but also the land) they have to ensure there is appropriate legal protection in place. That pre-condition will apply to everyone so it removes any suspicion about why a pre-nuptial agreement has been proposed for a particular family member ("it's not you, it's us"). Ensuring parity across the whole family will also create a level and fairer playing field for all.
Since the Supreme Court decision in the Radmacher case in 2010, pre-nuptial agreements have becoming increasing popular as people gain confidence in the protection the agreements provide. In the uncertain climate ahead for our farming sector, consideration needs to be given to protect against any foreseeable risks and, within the family context, pre-nuptial agreements are a sensible form of insurance for many.