Family Law in farming families

Farming families in Scotland face distinctive legal challenges when navigating family law issues such as divorce, financial separation, and childcare arrangements. Unlike many other professions, farming is not just an occupation, it is often a way of life, deeply intertwined with family heritage, business structures, and land ownership. This complexity makes legal disputes particularly sensitive and requires careful handling to protect both family relationships and the viability of the farm.

The nature of farming means that the home, land and assets are often part of the farm business and ownership can span multiple generations. In addition, the wealth is usually tied up in the land and equipment rather than liquid cash, which can make any settlement difficult while trying not to disrupt the business. As part of financial planning, a pre- or post-nuptial agreement could be considered to provide a valuable layer of protection.

Financial separation

In Scotland, the law governing financial provision upon divorce or dissolution of civil partnership is rooted in the principle of fair sharing of matrimonial property. Matrimonial property is defined as all assets acquired by either party during the marriage and before the date of separation, such as land, buildings and vehicles. Although, inherited or gifted assets are often excluded, they can be converted into matrimonial property through restructuring or reinvestment during the marriage. For farming families, this distinction is crucial. Farms are often multi-generational assets, sometimes held in complex structures such as partnerships or limited companies. Determining what falls within the matrimonial pot can be challenging, especially when ownership involves extended family members or corporate entities.

A common misconception is that once an asset is excluded from matrimonial property, it remains permanently protected. In reality, assets can become matrimonial property depending on how they are used during the marriage, and business assets are particularly vulnerable to this type of conversion. For example, if property is acquired during the marriage, or if an asset owned before the marriage is reinvested into a new asset, or the business is restructured, it may lose its excluded status. This means that the farm, or part of it, could be subject to division upon divorce. Even where the business began as a personal or family enterprise, changes made during the marriage can create legal consequences that were never intended.

To mitigate these risks, it is essential to seek specialist family law advice before taking any major financial steps. A pre or post nuptial agreement can set out how assets will be treated in the event of separation and provide clarity and reassurance for both parties.

Child contact in family families

Family law in farming contexts demands a nuanced approach that respects both the legal principles and the unique realities of rural life. The court considers the welfare of the child as the primary concern. Courts also prioritise continuity, ensuring that children can maintain schooling and community ties wherever possible, which can be difficult in a rural setting.

When children are involved in separations, their welfare is the paramount consideration under Scottish law. Decisions about residence and contact are based on what is in the child’s best interests, not on parental convenience or business needs. This can be especially challenging when the family home is tied to the farm and alternative accommodation for the departing spouse and children must be considered.

Legal advice should be sought at the earliest opportunity, and care arrangements can be formally recorded in a Minute of Agreement to help prevent future disputes. Mediation can also play a valuable role in facilitating constructive discussions during separation and ultimately you may need to involve the court should agreement not be possible.

Entering into a marriage or civil partnership can have significant implications for farms and farming families. Legal advice should be considered not only as part of financial planning but also in relation to the wider family law implications, such as childcare arrangements, ensuring that both family interests and the future of the farm are protected.

How we can help

If you are part of a farming family and want to understand how marriage, divorce, or childcare arrangements could impact your farm or business, or if you would like advice on pre- or post-nuptial agreements, get in touch with Sophie Greig (Sophie.Greig@andersonstrathern.co.uk), or speak to your usual Anderson Strathern contact.