Ailbhe Burke | Irish Independent – Farming Independent December 2022
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- Created: Wednesday, December 14 2022 12:35
Q: I married my wife five years ago and she moved into my family home on the farm the year before. My parents moved out, into a smaller house they had built on the farm some years ago which had been used as rented accommodation until then. My parents transferred the family home to me, along with half of the farm.
A few months ago my wife told me that she has been having an affair and that I had to leave the family home as the man she had been seeing was moving in.
I was shocked and angry and at first refused to leave but the atmosphere became unbearable, so I started staying with my parents.
My wife’s new partner has been staying with her in my family home and has no intention of leaving. She has filed for divorce and wants the house and a couple of acres of land. We’re in the west of Ireland and the farm is less than 100 acres, much of it isn’t that productive, and I’m worried that splitting it up will make it even less productive and I won’t be able to provide any living for myself or my family or pay maintenance if I have to.
What are my options?
A: Firstly I recommend that you consult with a family law solicitor as soon as possible.
~It appears that your wife is not entitled to apply for a divorce because you are not two years separated. If there were no normal marital relations for the past 12 months, she could apply for a Judicial Separation but the legislation is clear, you must be separated for 2 years before an application can be made for a divorce.
While you may feel hard done by, you should be aware that Ireland has a no-fault based system of divorce/separation. Therefore your wife may not be penalised financially for having an affair. The only conduct that is taken into account by the courts which can penalise one party is cruelty (which must be “gross and obvious”) or financial misconduct (eg failure to disclose an asset in the context of proceedings).
I recommend that you try mediation with a view to trying to reach an agreement with your wife to deal with all matters arising from the breakdown of your marriage. If this is successful, it will result in significant savings in legal fees and you can avoid the unnecessary stress of court proceedings.
Here is an indication of a likely outcome if the matter were to go to court. This could also form the basis for your negotiations at mediation:
All assets which either of you have (to include livestock, machinery and pensions) must be disclosed and valued and are taken into account in the division of assets.
You refer to your family but it is not clear from your query whether you and your wife have dependent children.
I will firstly assume that you don’t have children and your wife has not worked on the farm but works elsewhere. In that scenario a Court is likely to direct your wife to vacate the house on receipt of a lump sum from you. The Court would take into account the fact that it is a short marriage and the assets came from your family. You could be directed to pay your wife between one third to one half of the value of the equity in the house which you may have to borrow by way of a mortgage or a loan.
Assuming you do have dependent children who are in the family home with your wife, a Judge will consider the voice of the children and what arrangements are in the childrens best interests. This may result in the Judge allowing your wife and the children to remain in the family home until the youngest is no longer dependent - Children are dependent up to the age of 18 and if in full time education, up to the age of 23 assuming they do not have special needs- at which point the house could be sold and the proceeds divided.
If you were concerned about the welfare of the children with your wifes new man moving into their home, you could seek to have a psychologist appointed to assess the situation and make recommendations for the court about what living and access arrangements would be in the best interests of the children. Depending on the circumstances of the case, a Court might find that it is in the childrens best interests that you be appointed the primary carer of the children and direct your wife to leave the family home.
The question of maintenance would depend on a multitude of factors. If your wife doesn’t work, you may have to pay spousal maintenance to her but you will get tax relief on this and it is taxable in her hands. You will have to pay maintenance for your children if they live with your wife.
Your concern about splitting the farm is valid and would have to be supported by a report from an agricultural consultant and valuer. A Court is unlikely to divide a farm which would render it unproductive if it generates an income for the family and if provision can be made from other assets such as the family home.
The ultimate outcome would depend on the specific details of your case so consult a solicitor as soon as possible.