Assets warning on gay 'marriage'

David and Sir Elton's is the highest-profile civil partnership so far

Gay couples signing civil partnerships could be the next to suffer "unfair" court judgements over their assets if they split, a think tank has warned.

Judges in England and Wales often make the law on divorce instead of ruling on it, right-wing Civitas said.

The result was some "astonishing" judgements based on concepts such as equality and non-discrimination not found in matrimonial law, it said.

The government said same-sex couples were being offered greater protection.

In a report for Civitas - the Institute for the study of Civil Society - former Law Society president Martin Mears criticised the "institutional injustice" of family courts.

He said judges had been able to develop the law in family courts, where divorces are dealt with, under the Human Rights Act 2000.

Family courts have begun to promote concepts not covered by the Matrimonial Causes Act (MCA), which means there is injustice in the courts, with judgements that take no account of bad conduct and bad faith, he said.

And it may now cause problems for people "marrying" under the new civil partnership scheme, if their relationship breaks down, he warned.

It is impossible for people to protect their assets by drawing up pre-nuptial agreements, Mr Mears said, because they have no standing in UK courts.

'Divorce drone'

"If I were asked for advice by a man or woman considering entering upon a civil partnership, I would ask who was bringing the larger share of assets to the relationship," he said.

"If my client had more valuable assets, I would advise him or her against entering such a partnership, given the record of the courts in regarding all assets as joint assets, even when one partner has contributed little or nothing to the joint stock.

"The divorce drone could easily become a reality for same-sex couples, after a long run of almost unbroken successes in the family courts following the breakdown of heterosexual relationships."

A spokeswoman for the Department for Constitutional Affairs said civil partnerships offered greater protection for same-sex couples across family arrangements - legal, medical, financial or any other.

The legal system is based on case law, she said, and that is not limited to the family courts.

Judicial discretion means the individual judge must take account of specific legislation under which any application is made, such as the Matrimonial Causes Act 1973, and any relative legislation like the Human Rights Act 2000, in concert.

The laws on dissolving civil partnerships mirror that.

Although the MCA does not use the terms equality and non-discrimination, she said it clearly allowed for judicial discretion to ensure both parties were treated fairly according to the facts of the case.