It has been reported that the government is looking at possible law reform to encourage the widespread use of pre-nuptial agreements.A pre-nuptial agreement in this context can be defined as a means of setting out the parties' rights and liabilities in relation to their property in the event of the relationship breaking down through divorce.Relevance to the courtThe jurisdiction of the English court to determine a claim for financial provision following a divorce cannot be excluded by a pre-nuptial agreement.

Instead, the court will determine financial provision claims following the criteria set down in s 25 of the Matrimonial Causes Act 1973.This point was succinctly put by Thorpe J, as he then was, in F v F (Ancillary relief: substantial assets) (1995) 2 FLR 45.

Referring to pre-nuptial agreements, Thorpe J said: 'In this jurisdiction they must be of very limited significance.

The rights and responsibilities of those whose financial affairs are regulated by statute cannot be much influenced by contractual terms which were devised with the control and limitation of standards that are intended to be of universal application throughout our society.' However, those words should be read in the context of two subsequent cases at first instance reported last year.

These make clear that the pre-nuptial agreement is of evidential value when considering how to resolve a claim for financial provision following the criteria in s 2 5.

In the first case, Cazalet J in N v N (Foreign divorce: financial relief) (1997) 1 FLR 900 said '.

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the pre-nuptial agreement .

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would be binding in Sweden as against being no more than a material consideration in this court under s 25 of the Matrimonial Causes Act 1973'.In the second S v S (divorce: staying proceedings) (1997) 2 FLR 100, Wilson J said: 'I am aware of a growing belief that in the despatch of a claim for ancillary relief in this jurisdiction no significant weight will be afforded to a pre-nuptial agreement whatever the circumstances.

I would like to sound a cautionary note in that respect .

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there is a danger that these words (ie those of Thorpe J in F v F quoted above) might be taken out of context.'Looking ahead, the judge went on to say: 'There will come a case .

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where the circumstances surrounding the pre-nuptial agreement and the provision therein contained might when viewed in the context of the other circumstances of the case prove influential or even crucial .

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I can find nothing in s 25 to compel a conclusion .

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at odds with personal freedoms to make arrangement for ourselves .

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carefully struck by informed adults.

It all depends.'Is a pre-nuptial agreement worthwhile?If one or both of the parties to the marriage are foreign or have close links with a foreign country then the question of a pre-nuptial agreement should be considered, with the assistance of a foreign lawyer.

However, even in the absence of a foreign element, as long as the pre-nuptial agreement is entered into properly it will be relevant on the breakdown of the marriage.Key issues need to be addressed, such as how to deal with changing circumstances.

An obvious example is having children.

It would be clearly unfair to hold a wife to an agreement if her circumstances had changed radically in the meantime.

For example, a wife with two children who had given up work ten years ago with the husband's agreement or at his insistence, should not be held to an agreement made at a time when she had a good job and no children to look after.A pre-nuptial agreement also serves to clarify issues before the marriage takes place.

What is more, it leads to an expectation by the parties as to how a dispute on breakdown would be resolved.

This in itself can be crucial in assisting the resolution of a dispute in the future.Having said that, it may be that considerable stress can be caused to a relationship by even suggesting a pre-nuptial agreement.

This is to be avoided, particularly given that the final document will not be binding in the court.

However, if the idea of an agreement does not cause a problem between the parties in principle, then there are advantages to having one drawn up.Drawing up a pre-nuptial agreementIn order to strengthen the relevance of the agreement to a court it is essential both parties receive independent advice.

The contents of the pre-nuptial agreement in a particular case will depend upon the individual circumstances.

However, certain key points are to be included such as:-- disclosure;-- duration;-- variation and review;-- payment of a lump sum to the poorer party on the signing of the agreement or during the marriage;-- gifts acquired afterwards or inheritances;-- provision on death;-- the law of the country to apply;-- severability;-- any other issue of importance eg, the religion to apply to any future children and;-- costs.ConclusionSeven years ago, the Law Society's family law committee recommended reform to bring in legislation to make pre-nuptial agreements enforceable under English law.

That has not happened and there is no immediate prospect that it will happen.But, what is apparent, quite apart from the fact that the issue is back on the government's agenda, is that there are advantages to having a pre-nuptial agreement.

And if the right case comes before the courts where an English couple has entered into an English pre-nuptial agreement with proper legal advice and where the outcome appears fair when compared with the s 25 criteria, it is just possible that a judge may rule in such a way as to push the possibility of reform further on.

We shall have to wait and see.