Judges are increasingly making law instead of ruling on it, according to a new report from the independent think-tank Civitas, and the Human Rights Act has provided them with the perfect basis for doing so. The Act's supporters sometimes deny this but the truth was admitted by a Law Lord, Lord Hope: 'It is now plain that the incorporation of the European Convention on Human Rights into our domestic law will subject the entire legal system to a fundamental process of review and, wherever necessary, reform by the judiciary'. (p.3. Emphasis added.)

With rising numbers of divorces, the average citizen is most likely to experience the court system in the family courts, and it is here that the quality of judicial decision-making has acquired the worst reputation. In Institutional Injustice, Martin Mears, the former President of the Law Society, shows how some judges in the family courts have 'developed' the law by promoting concepts such as 'equality' and 'non-discrimination' (which are not to be found in the Matrimonial Causes Act) to an extent amounting to virtual new legislation (pp.53-58). The result, he argues, has been a culture of 'institutional injustice' in the family courts, with astonishing judgments that take no account of even the most flagrant examples of bad conduct and bad faith. Martin Mears now warns that same-sex couples may find themselves smarting under the same unjust regime, when relationships formalised under the new civil partnerships legislation start to break down.

It is a generally accepted rule of contract law that, when a contract breaks down, the party responsible should compensate the innocent party for their disappointed expectations. This is not so in family law, where judges refuse to take conduct into account in divorce hearings except in the most extreme cases - and not always then. Martin Mears cites the case of a woman who stabbed her ex-husband in the stomach and was convicted of assault. The judge held that this conduct justified a reduction in maintenance from £195 a month to £50 a month, but not its abolition (p.31). In an even more disturbing case, a woman hired a hit-man to kill her ex-husband 35 years after their divorce. In this case the maintenance order was discharged, but the judge ruled that: 'it is not every homicide, or attempted homicide, by a wife of a husband which necessarily involves a financial penalty'.

'What can these extraordinary words mean other than that if Mrs Evans had been able to put together a plausible tale in mitigation, or if she had come before a more amenable judge, she could have received her maintenance until the day she or her husband died?' (p.32)

The result of this refusal to take into account the conduct of divorcing parties is that 'a party who has repudiated all the obligations of the marriage can claim the financial benefits accruing from it to the same extent as if he/she had behaved impeccably'. (p.75). Some of the rulings of the family court seem to defy all concepts of justice, and sometimes common sense. A man whose ex-wife applied for an increase in her maintenance, on the grounds that she had given birth to a child by an Irishman who had returned to Ireland, objected to being asked to support another man's child. The judge ruled against him, and granted the wife's petition, on the grounds that: 'For all we know, the child may have been conceived in circumstances that reflect nothing but credit on the wife, for example under promise of marriage from the father'. (p.38)

In the case of Clark-vs-Clark, the wife, according to the judge, 'did not love her husband and she only married him for his money' (p.19). She refused him his conjugal rights, put him into a geriatric home, used his wealth to shower gifts on her younger lover, and drove him to an attempted suicide. She was nevertheless awarded a package worth £552,500, reduced to £175,000 on appeal, on the grounds that 'it would be harsh in the extreme to leave her with nothing' (p.23).

It is impossible for people to protect their assets by drawing up pre-nuptial agreements, as these have no standing in British courts.

'It is not surprising that for wives married to rich husbands, London now rivals California as the divorce forum of choice. Indeed, … it is surprising that any rich man marries at all.' (p.101)

However, Martin Mears warned today that these questions, which used to be regarded as being relevant only to heterosexual couples, are about to become live issues for the gay and lesbian community as well, under the new civil partnerships legislation.

'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. 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.'

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