Kathy Marks looks at two ways of avoiding the heartache, bitterness and expense of divorce: mediation and the pre-emptive strike of the pre-nuptial contract
IN the first flush of love, the idea of signing a pre-nuptial contract is about as romantic as the prospect of sleeping in separate beds. The last thing that a couple want to contemplate as they walk down the aisle is who gets the fridge-freezer and custody of the dog if they split up.

But given that two out of five new marriages end in divorce in this country, it is not surprising that people are becoming a little more pragmatic. Where contracts on dividing the spoils of union were once the exclusive preserve of the rich and famous, they are increasingly gaining currency among ordinary couples.

Marked changes in the way we live are the main factor. People are getting married later in life, by which time they may have amassed savings that they are loathe to share, and those entering second marriages may be anxious to make independent provision for existing children.

In the case of film stars and rock singers, the considerations are clearly more pressing. Thus Barbra Streisand recently put on hold plans to marry her fiance, James Brolin, while their lawyers hammered out a pre-nuptial agreement.

Michael Jackson, meanwhile, said to be worth pounds 500m, has a contract with his wife, Debbie Rowe, which gives her no rights to his fortune in the event of a divorce. Elizabeth Taylor signed one with her eighth husband, Larry Fortensky, although he still managed to walk away with pounds 1m.

It is partly publicity about such deals that has prompted couples away from the limelight to follow suit, according to Nigel Shepherd, head of the matrimonial division at Berrymans Lace Mawer, a national law firm.

"I dealt with one case where the man refused to get married unless his partner signed a pre-nuptial contract," Mr Shepherd says. "He had a business worth pounds 6m that he wanted to leave to the children of his first marriage, and he was not prepared to take the risk."

But such agreements are far from routine here, though in the United States and many European countries they are part of the culture. It is not that we are more starry-eyed; it is the fact that they are not recognised by the English courts.

The Lord Chancellor's Department is considering reforms that would make these contracts legally enforceable. In the meantime, according to Mr Shepherd, judges are more inclined to take them into account if both partners sought independent legal advice beforehand and if both were candid about their financial affairs.

"The other key factor is whether provision is made for major changes in circumstances such as the birth of a child," he says. "Otherwise it will not be worth the paper it is written on."

You can, if you like, follow the example of some American couples and write into a contract a pledge to spend quality time together. But you may not stipulate the regularity which which more intimate relations should occur. In this country, it is illegal to enter into a contract for the provision of sexual services - even if the signatories are married to one another.

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