Reforms may force couples to plan their divorce before they marry

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Couples will be encouraged to reach pre-nuptial agreements under controversial divorce law reforms being considered by the Government. But, Kim Sengupta discovers, such agreements already exist and judges are increasingly ready to accept them in court.

Forms of pre-nuptial agreements are not new to English common law. Wealthy families arranged settlements for wives built into marriage contracts for centuries. But all that changed in 1848 when in the case of Cocksedge v Cocksedge, judge Sir Lionel Shadwell condemned the practice for "enticing wives to engage in the most atrocious conduct". The Victorian fear was that certainty of a settlement was intrinsically destabilising to the family as it would encourage some wives to stray.

Now the Lord Chancellor's Department is considering changes to the divorce laws to bring them in line with the United States, Canada, Australia and most of the European Union and make pre-nuptial agreements legally enforceable. There is even the proposal of a penalty clause, with those without an agreement being forced to divide marital property 50:50 on divorce.

The proposed changes are also said to have the support of a ministerial task force on promoting the family chaired by the Home Secretary, Jack Straw. The process of taking out a pre-nuptial agreement would, it is believed, make people think seriously before taking such an important step. It would also help the Child Support Agency's efforts to make absent fathers pay contributions to their offspring. One minister is reported to have declared: "If it stops Sid Yobbo from having children, so much the better."

Senior divorce lawyers have said that even without the change of law, the number of couples taking out pre-nuptial agreements in this country has risen dramatically in the past two years. Although judges cannot be forced to act according to such agreements, they can be used to influence their decisions.

Mr Justice Wilson, an authority on matrimonial law has stated the courts should consider the merits of the pre-nuptial contract and not be categoric about rejecting them. This was underlined in his judgment in S v S last year in the High Court, when a case was sent to New York where a pre-nuptial agreement had been drawn up and could be enforced, rather than the hearing being held in this country as one of the parties had wanted.

However, English judges also believe that pre-nuptial agreements should be overturned when they are deemed to be against natural justice. In the case of the Mercedes-Benz heir, Mick Flick, and his wife, Maya, which was heard in London, the judge awarded Mrs Flick 5.3 per cent of his pounds 9m fortune, although under a pre-nuptial agreement she was only entitled to the "equivalent of the pension of a German judge".

Nicholas Mostyn QC, a leading divorce barrister, said: "It is undoubtedly the case that a lot more people are arranging pre-nuptial contracts. I have drawn up quite a few, and the numbers have risen significantly in the last two years. In most of the cases, at least one of the partners is non-British, but there also some where both partners are British. You cannot force a court to enforce the agreement, but you can influence a court."

In the public perception pre-nuptial agreements are associated with the rich and famous: The Trumps, Liz Taylor and Larry Fortensky, Michael Jackson and his wife, Debbie, Mark Phillips and heiress Sandy Pflueger. However, the less wealthy are also increasingly considering it. Stephen Armstrong and his Canadian-born wife Melinda, who live in Belsize Park, north-west London, are drawing up an agreement.

Mr Armstrong, a 38-year-old company director, said: "This is purely a form of insurance to avoid future unpleasantness, although we hope, of course, it will never have to be used. I have been married before and got badly stung at the divorce settlement. But the idea of the pre-nuptial contract in fact came from Mel. She has lived in the States, and of course it is not at all unusual there.".

But Julia Cole, of the marriage guidance group Relate warned: "Couples who go into this may find they have this contract hanging over them like a sword of Damocles ... One must also take into account that circumstances change during a marriage."

winners and losers

A judge in London awarded Maya Flick, wife of Mercedes-Benz heir, Mick Flick, 5.3 per cent of his pounds 9m fortune, despite a pre-nuptial agreement entitling her to much less

The entertainer Michael Jackson, worth pounds 500m, has a pre-nuptial agreement with his wife, Debbie Rowe, which gives her no rights to a division of his fortune

Larry Fortensky had a pre-nuptial agreement entitling him to about pounds 1m from his marriage to Elizabeth Taylor