CHAPTER TWO – THE FIRST MEETING – FACT FINDING AND INFORMATION GATHERING
In all cases, the first meeting is particularly important in establishing a good working relationship between client and solicitor, and in setting the tone for moving forward. However, in farming divorce cases, it can be more difficult than usual at a first meeting to get a handle on the various aspects of the case, or to give a clear steer on parameters for a likely outcome.
This is both due to the complexities of the law as it applies to farming scenarios, and also due to difficulties in establishing the extent and nature of the assets. Farming clients can often be very clear about the practicalities of their day-to-day work, while considerably less clear about the legal niceties of title deeds or business arrangements. The solicitor’s job is therefore to dig into these details, however unimportant the client may have thought them up to now, and seek to get documentation and other evidence to cross-check whether what the client thinks about land and business arrangements is actually correct.
This chapter is intended as a practical checklist of what questions to ask at, or shortly after, a first meeting. This are not intended to cover everything that the solicitor will need to know over the course of a farming divorce case – far from it – but to be a sound first starting point.
General aims:
- Where does the client want to be in a year’s time? On the farm and involved in the business; or living elsewhere?
- Does the client see the farm business continuing, or the assets being sold?
- Does the client intend or wish the farm to pass to other family members in the future?
The business:
- How is the business set up? Is it a sole trader, partnership or company? Is there more than one business entity to cover different aspects of the farming business?
- Who is the business accountant or adviser? Is the client content for that accountant to be contacted directly for further details/documents?
- Does the client have copy accounts for the business? If not, who does? Can a run of accounts be provided, ideally covering the entire period from before the marriage to date? Who might have these?
- Did either spouse pay any consideration to acquire their respective stakes in the business? If so, when and to whom?
- Has there been (or is there any future possibility of) diversification e.g. wind turbines, holiday cottages, lease of farm machinery? If so, is that run through the same farm business, or separately?
If the business is a company:
- What is the exact company name and number? Does the client have basic company documentation, or should this be obtained from Companies House?
- Is there a shareholders agreement?
- Are there shareholders other than the spouses?
If the business is a partnership:
- How is the partnership established – general partnership, Limited Partnership, or LLP?
- Is there a written partnership agreement, and if so, who has a copy of this?
- When was the partnership constituted?
- Who are the other partners?
- Has there been any change to the partnership during the period of the marriage – e.g. new partners taken on, new partnership agreement signed?
The land
- What land is owned?
- Is all or any part of the farm rented and if so what is the nature of the tenancy?
- Who holds the titles? Can the client (or anyone else) provide copies, or does the Land Register or Sasines Register need to be checked?
- Whose name is on the title deeds? Is that the same or different to whom the client thinks the true owner of the land is (e.g. if the title deed in the name of individual(s) but the client believes the land is owned by the partnership)?
- Was any consideration of any kind made in exchange for the land acquisition (whether or not recorded on the title deed)?
- Does the client have any idea of the value of the land (and is that different from the current value per the accounts)?
- Is there any development potential for the land? If so, what?
Arguments
- Has the claimant contributed time and energy to the farm business or the family? If so, how? Have they given up the possibilities of a career or opportunities elsewhere? If so, what?
- Have there been any gifts or inheritances of land or other assets forming part of the farm? If a gift, is this documented? Is the giver still alive and could he/she provide a statement about this?
Resources
- Would the farm business be viable if part of the assets were sold?
- What other options might there be for raising money for a potential settlement?
- Is there any debt?