Crofting Law and Family Law in Shetland

Crofts are common across the Highlands and Islands region including in Shetland, and are areas of agricultural land which can have a dwelling house, and may also have a share in communal grazing.

Crofting and family law come together frequently in Shetland and other areas of the Highlands and Islands. The status of a croft and when the croft was acquired plays an important role in the division of assets upon separation. A croft may be either owned by a landlord and tenanted to a crofter or owned and occupied by the crofters themselves. If a croft is tenanted a nominal rent is required to be paid by the crofter to the landlord who may have a number of tenanted crofts.  Croft tenancies can only be held in one person’s name, even though both spouses may work the croft in practice.

If the croft is an owner occupied croft and was purchased during marriage as with other matrimonial assets it would form part of the matrimonial property and be taken into account in the division of assets and liabilities on separation. If the croft is sold, the proceeds could be divided. However, if the croft is owner occupied, it cannot be physically divided without the consent of the Crofting Commission.   If it was owner occupied and purchased prior to marriage it would fall out with the scope of matrimonial property as is the norm.

What if the croft is tenanted? If the croft tenancy is purchased during marriage then it will be matrimonial property, notwithstanding that the tenancy would only be in the name of one spouse. The value of the tenancy could be determined by using the purchase price of the croft tenancy, which would again depend on various factors e.g. whether a dwelling house formed part of the tenancy.

However, what if improvements have been made to the croft since purchase but during marriage using matrimonial funds? It may be necessary to obtain the advice of a surveyor who has experience in valuing crofts, especially croft tenancies, to comment on this, as logically if improvements have been made, the value would increase. Difficulties can also arise if a croft tenancy was owned prior to marriage but improvements were completed during marriage using matrimonial funds. Again, from a matrimonial point of view the tenancy would be a non-matrimonial asset which has been enhanced using matrimonial funds and therefore there is an argument to say that any increase in value should be taken into account in terms of the overall division. If a valuation can be obtained from a surveyor experienced in crofting this would assist, otherwise it may be that the funds put in to the non-matrimonial asset can be vouched and be taken into account.

Another aspect in which crofting law and family law may also come together is the income gained from the croft and how this is received by the crofter.  Various grants may be available and this may or may not require to be taken into account. Crofters may be set up as self-employed or have taken up diversification projects on the croft, and therefore it may be necessary to have the crofting business valued.

Crofting Law can be complex and if there are crofting elements to a separation it is best to seek expert legal advice. Harper Macleod’s specialist family law team are here to guide you through this process.