A fairer end to relationships: the proposals for married couples

The law on dividing finances on divorce has remained largely unchanged for more than half a century. It gives judges a wide discretion, which can make outcomes difficult to predict.

For married couples and civil partners, the government favours what it calls a "codification-plus" approach. Rather than starting again, it would set out in legislation the principles the courts already apply, and make targeted reforms where the law is uncertain. The starting point would be that property built up during the marriage is shared equally, unless an unequal division is needed to meet either of your needs. The difference between matrimonial property and non-matrimonial property, which is typically property one of you brought into the marriage or received as an inheritance or gift, would also be defined.

Needs would be considered in three stages: the needs of any children first, then each of your capital and income needs, including housing and pensions, and finally any wider needs where there are enough resources to meet them. The court would also be specifically required to consider pensions built up during the marriage, which research suggests are often overlooked. Where you lived together and then married without a break, that time together would count towards the length of the marriage, putting an existing court practice into law.

The aim is to make outcomes more predictable, so that you and your solicitor can judge more confidently what a court would be likely to order, which in turn should make agreement easier to reach. The court would keep the same powers it has now. As with any new legislation, much will depend on the final wording and how the courts apply it.

Pre-nuptial and post-nuptial agreements are not automatically binding in England and Wales at the moment. Following the Supreme Court's decision in Radmacher v Granatino, the court will uphold an agreement that was freely entered into, with a full appreciation of its implications, unless it would be unfair to hold you to it. That leaves some uncertainty about when an agreement will be followed.

The government proposes "qualifying nuptial agreements", which would be binding provided certain safeguards are met. The agreement would need to be a valid contract, made by deed, and include a signed statement that you both understand its effect. It could not be made in the 28 days before the wedding or civil partnership. You would each need to have received disclosure of the other's finances and to have taken independent legal advice, and neither of you could waive those requirements. An agreement still could not be used to avoid meeting either of your needs, which would be assessed on a narrower basis, or the needs of any children.

For couples who want certainty, particularly where there is family wealth, a business or children from an earlier relationship, this could be a significant change. It would not mean an agreement can be signed in a hurry or without advice, as the certainty depends on the safeguards being met. In the meantime, a well-drafted agreement made with full disclosure and independent advice on both sides is still taken seriously by the court, so there is no need to wait for the law to change.

At present, conduct, including domestic abuse, is only taken into account in financial proceedings in very limited circumstances, and the threshold set by the courts is very high. The government is seeking views on whether domestic abuse, including economic abuse, should more readily be taken into account when the court decides how assets are divided, both on divorce and under the proposed scheme for unmarried couples. It has not yet proposed a specific change, and is gathering evidence first.

Until any new law is passed, the current law applies, and decisions should be made on that basis. If you are planning to marry, a nuptial agreement made now, with full disclosure and independent advice on both sides, can still carry real weight. If you are separating from your husband, wife or civil partner, your position will be decided under the current law, and it would be unwise to delay taking advice in the hope that the law will change.

We will follow the government's response closely and update this article when there is more to report. The full consultation document is available on gov.uk.