11 December 2019 - Article
‘…We are talking about protecting the future of the farm, Tony, the thing we have worked for all our lives…it concerns the whole family. Being clear and upfront about where everybody stands makes perfect sense. I’m convinced that a postnup is the best way forward for all of us’
Well said, Pat. The Archers radio drama, which has been broadcast in the UK since 1951 has become an active platform for raising awareness about important family law issues. Its producers do not shy away from controversial areas (coercive behaviour in marriage leading to attempted murder/manslaughter, domestic abuse, surrogacy). The drama’s latest offering is to raise the issue of problems which can arise in family-run businesses (not only of the farming variety) when one couple within the business gets divorced. How will financial claims from a soon-to-be ex-spouse, affect the future viability of the family business and the interests of the wider family members involved in it? Pat’s concern about the future of her son’s marriage to the ambitious Natasha (who is directly involved in running the farm), is well-placed and her suggestion that the couple consider a postnuptial agreement after their hasty marriage seems refreshingly sensible.
The latest controversial storyline is another chapter in the Archers family saga with a helpful legal dimension. Pat’s prudent suggestion to have a post-nup highlights all too common difficulties which can arise where families run a business together (farming or otherwise) and the future of that business is made vulnerable by financial claims on divorce or ownership dispute between wider family members.
Prenups and postnups are neither the preserve of the super-rich, nor have to be incredibly complex. Often, they are simply a sensible mechanism designed to reduce potential uncertainty, acrimony and unnecessary legal costs by minimising the scope for dispute. Such agreements can provide couples (and wider family members) with a measure of reassurance and certainty if properly entered into. They can be used to identify any ‘non-matrimonial property’ which is to be protected from any claims on divorce and are helpful in recording the intentions of a couple as to what they wish to happen in the unfortunate event that their marriage breaks down. Those sometimes emotionally-charged and difficult-to-have conversations are bravely and wisely undertaken, often resulting in clarity for the couple and peace of mind for wider family members. As such they can inject a healthy dose of marital and financial realism into the marriage and the relations between all those bound together in the family business. Pat is quite right to point out that being clear and upfront about where everybody stands is the best way forward.
Sadly, litigation over farms and rural estates in the UK comes before the High Court all too frequently. The recent UK Court of Appeal case of Habberfield v Habberfield was a fairly typical example of an ownership dispute involving different generations of a dairy farming family following the death of the patriarch and featuring the esoteric legal construct of proprietary estoppel (acting on a promise to one’s detriment). After acrimonious and very costly proceedings, the court decided that assurances of future ownership and management of the farm following her father’s retirement had been given to one daughter who had worked on the farm for little reward throughout her adult life. The court adjudicated outcome which would likely result in the farm being broken up and the octogenarian mother having to relinquish her long term family home starkly illustrates the serious issues that can arise in the absence of clear documented agreements when family trust breaks down and expectations are not met.
The Pat and Tony postnup story will resonate with countless families up and down the country and will be relevant for many others. Aside from providing compelling storylines, The Archers does much to raise public awareness (and bust certain myths) about important legal issues relevant to everyday folk. Here’s to the next instalment (…featuring the widely misunderstood lack of rights for unmarried cohabitants, perhaps..?)