Prenuptial & Postnuptial Agreements: Protecting Agricultural Assets

What are nuptial agreements?

An agreement entered into prior to marriage (prenup) or after marriage (postnup) is made between spouses to regulate the rights and responsibilities regarding their financial assets, including agricultural assets and farming business interests, in the event of a divorce or separation.

Who should enter into a nuptial agreement?

A couple who are either due to get married or are already married.

What assets can a nuptial agreement cover?

Assets include, but are not limited to, any land, farming equipment, livestock, agricultural businesses, and other farming-related assets owned by either yourself or your spouse prior to the marriage or received as a gift or inheritance during the marriage.

Why should you enter into a nuptial agreement?

If you recognise the importance of safeguarding specific assets that are important to you and want to ensure that they stay within the family, especially those related to family farms, agricultural businesses, and other assets that may be inherited or owned before the marriage, then you will want to consider a nuptial agreement.

A nuptial agreement will identify assets owned by yourself, or your spouse in your sole name or jointly, and will outline how those assets, as well as any future inheritance or business interests, particularly in relation to family farming businesses and agricultural assets will be protected and managed in the event of a divorce.

By entering into an agreement, the aim is to ensure clarity, fairness, and long-term preservation of family farms and agricultural assets, while mitigating the potential for conflict in the event of a later divorce or separation.

When should you consider a nuptial agreement?

• Are you considering bringing in the next generation to the farming company/partnership? If so, the next generation may become entitled to a share of the business, and this value will be taken into account in any divorce proceedings they may later be involved in.
• Are you considering gifting agricultural or business assets to your child(ren) or business partners? If so, the asset will form part of their assets for the purposes of any future divorce proceedings. If you want to ensure that the asset remains with them, they should consider a nuptial agreement.
• Are you reviewing your business structure and putting assets into the farming company or partnership? If so, this is likely to increase the value of the company/partnership and this value will be taken into account in divorce proceedings if any of the shareholders/partners later divorce.
• Are you considering creating a trust and/or transferring assets into trust? If so, it is important to remember that any beneficiaries of those trusts will be required to disclose their interest for the purpose of divorce proceedings and those interests may be taken into account as a resource to which they have access.
• Are you considering gifting assets to your spouse? Even if this is for legitimate tax or estate planning reasons, it is important to ensure that those assets are protected in the event of an unforeseen later divorce. If, having gifted items to your spouse and they later divorce you, they may get to keep those assets, or you may have to pay for their return. Even if you were content for them to keep those assets in the event of separation on the basis they will ultimately transfer to your children, what if they later married and got divorced again? Those assets could be divided again on a future divorce outside of the original couple.

We would not recommend that you undertake any of the above tax planning without speaking to a Private Client Lawyer and your trusted professional advisors. However, in all the above situations, a nuptial agreement would be useful. By considering these situations now, and addressing these issues upfront, a nuptial agreement provides clarity and protects your agricultural assets, giving you peace of mind for the future.

How will a nuptial agreement protect your family farm?

Often, either you or your spouse will recognise that family farms are passed down through generations and therefore it is important to preserve the continuity of family farming traditions. As such, the nuptial agreement establishes the intent to preserve the family farm, safeguarding it for future generations.

Where can you go to get further advice on whether a nuptial agreement is suitable in your situation?

If you have any queries or would like to discuss your own circumstances, please contact Holly Smith to request a free initial consultation or a member of our Family Law or Private Client teams.