Farms are often considered as more than just real estate by those who own and work them. In many cases they are passed down through the generations from parents to their children and as such have sentimental, as well as commercial value. During a separation, this value must be balanced against the non-farming spouse’s right to a fair and equitable property settlement.
Prior to the introduction of the Family Law Act, farms maintained a special status within the Family Courts with an acknowledgement that farms were not only valuable pieces of real estate providing a home for the family, but also business assets generating an income. As such, the Courts largely took the view that as far as possible, orders should not be made that would affect the income earning potential of the farm or require its sale. As a consequence, non-farming spouses could be significantly disadvantaged compared to their suburban counterpart who might otherwise receive a payment from the sale of the matrimonial home.
Today, farms are largely treated as all other real property, however, there remains the view that it is preferable for a business asset such as a farm to be retained by the spouse working the farm, but only if a just and equitable result can still be achieved for both parties. A Court will consider alternatives to forcing the sale of the farm, but ultimately if the alternatives are not just and equitable then the farm will need to be sold, just as any other asset of the parties.
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