Protecting your business against divorce: cautionary tale from the ‘Garden of Eden’

The 16th century mansion, referred to as the ‘Garden of Eden’ is up for sale after Barbara Pollard accused her husband Ian of being a ‘womanising alcoholic’. The couple were given their ‘Naked Gardeners’ nickname after frequently appearing on TV wearing little more than their gardening gloves.

All divorces are difficult and they are made harder when a business is involved because of its impact on the family, the company – and the employees.

In this particular case, the wider community is also affected by the couple’s decision to split up. Since opening in 1998, the nationally renowned garden has attracted nearly half a million visitors and crowds of naked tourists who flocked to the former nunnery and grounds could now lose a favoured amenity once it is sold.

Elected Mayor of Malmesbury Sue Poole – who says the gardens have put the town on the map – is so concerned that Malmesbury will lose a vital tourist attraction that she has appealed for any prospective buyers to keep them open.

Ian Pollard says he cannot afford to buy his wife’s share of the property so their home – and business – must be sold. The Pollards’ situation reinforces the importance of obtaining good, professional legal advice – both prior to marriage and during a marriage – when a couple are in business together so that a pre-nuptial or post-nuptial agreement can be drawn up.

In the event of a divorce, a company could be regarded as a matrimonial asset to be sold or shared. And if you are already married, it really is worth considering a post-nuptial agreement to protect any new business ventures.

Although pre-nuptial and post-nuptial agreements are not legally binding, they are taken into account by the court and can make the whole divorce process run more smoothly. However, they will not prevent a business from coming under close scrutiny with key issues such as how much it is worth – and what income it provides both now and potentially in the future – when assets are divided.

Judges will often examine the liquidity within a business and how this might be paid out to the wider family to meet costs such as accommodation or school fees. It is therefore vital that you are not seen to be hiding any assets as this will not only be frowned upon by the courts – but could also result in a prison sentence.

While discussing assets, avoid mixing business and private assets unless absolutely necessary. When clients tell us they have secure borrowing for the business against the family home, we are always concerned about the potential impact on the domestic and commercial factors of a divorce settlement.

Ultimately, if as a business owner you find yourself facing divorce, I would advise you to think carefully about what desired outcome you are seeking. It is essential to recognise and understand how the court process works and the costs that may be involved. Being prepared and setting an agenda for discussions with your ex can ensure a better outcome for your company and everyone involved.

If your business is the economic bedrock of a local community then, like the Pollards, you may well find that more people than your immediate family and staff feel the thorny effects of your divorce.

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About Peter Jones

One of the UK’s most sought-after divorce lawyers, founder of Jones Myers in 1992, first qualified arbitrator in Leeds and former national chair of Resolution. Peter has experience at the highest level in all aspects of financial disputes and is an expert on issues relating to small family businesses