When an unmarried farming couple break up, what happens to the farm and the children involved?
The breakdown of a relationship is tough and tensions can often be exacerbated where children are involved. We are often approached by a parent who has separated from their partner, where there is a substantial imbalance between their respective earning capacities or where capital assets are owned by one party in their sole name.
This situation often arises in farming families, for example where an adult child has succeeded to a family farm, which remains in their sole name. In a previous article we discuss this is relation to married farming couples getting divorced. This article however, focusses on how to achieve a fair outcome if the couple is not married.
What’s the difference between a married farming break up and an unmarried break up?
It is important to remember that unmarried partners are not protected in law on relationship breakdown in the same way a married spouse is, and there is no such thing as a ‘common law marriage’.
Sadly, when a farming couple break up, an unmarried partner can often find themselves being ousted from the farming family they have been a part of (sometimes for a significant period of time). An individual may have nowhere else to live or no financial resources to fund everyday living expenses for their children; this is where a claim for financial provision could provide a solution.
What claims are available in respect of the property?
There is a presumption that the legal owner of a property (or land) is entitled to the entirety of the equity (financial value) in it, though this presumption can be rebutted.
A non-owner of a property may be able to claim an interest in it under the Trusts of Land and Appointment of Trustees Act 1996 (“TOLATA”).
The person making such a claim will need to satisfy a two stage test: producing evidence of financial contributions (or contributions in money’s worth, such as improvements to the farm).
If a person’s interest in a property (whether a legal interest as a co-owner of a property or an interest acquired through a TOLATA claim) is insufficient to rehouse themselves and the children, they may consider also making a top-up claim for financial provision for the children. These can cover wider costs for children as well.
For more information on claims against property for unmarried couples, please read here.
What financial orders can be made in respect of the children in a farming break up?
Under Schedule 1 of the Children Act 1989 (“Schedule 1”) the Court has wide powers when considering an application for financial provision for the benefit of the child or children, which include:
- Lump sums – sum(s) of money for capital needs (e.g. furnishing a property; clearing debts relating to the costs of bringing up children; buying a reliable car to transport the children);
- Property settlement – funds can be sought to create or boost a housing fund (the property or top-up element of the equity achieved under Schedule 1 will revert back to the paying parent’s ownership, usually when the children finish education);
- Interim provision to cover the claiming parent’s legal fees incurred for the benefit of the child (which can also cover the costs of proceedings relating to their care arrangements where there is an imbalance of ability to fund legal representation and other criteria are met); and
- Periodical Payments or “maintenance”– where the paying parent makes monthly payments to meet the needs of the children and main parent (although these can only be ordered where the Child Maintenance Service does not have jurisdiction, for example if a maximum CMS assessment has been made because the paying parent earns more than £156,000 gross or they live abroad).
With any claim for financial provision, the starting point is to understand what each person’s financial position is (to include any interest in property). This is known as “financial disclosure”.
Once financial disclosure has been exchanged we can then assess what types, and the level of, financial provision that may be secured under Schedule 1. If the parents co-operate, this can be resolved by agreement without a formal application to the Court.
Whilst claims under TOLATA (in respect of the property) and claims under Schedule 1 (financial provision for a child or children) can be pursued separately, it is often advantageous both tactically and to minimise legal costs to deal with them both together. The court processes are then joined together so that the court can first determine the claiming parent’s interest, if any, in the paying parent’s property; then go on to assess the additional financial provision that may need to be made for the children’s benefit.
Our expert Family and Cohabitation Teams work together on these types of matters to ensure you receive comprehensive advice on possible claims in your circumstances. It is really important to take legal advice early on to ensure that protective measures are taken and matters are dealt with properly and cost-efficiently.