It is extremely difficult, if not impossible to legislate for emotions. This is a conundrum, known to sociologists as a ‘wicked problem’. In other words there is no scientifically probative ‘right’ or ‘wrong’ answer and the ‘solution’ may in fact give rise to a consequential raft of other societal and institutional problems, not yet apparent.
Examples of legislation which have attempted to incorporate and take account of ‘emotions’ are the law on self-defence, legislation on coercive and controlling behaviour and divorce laws.
Currently, in the UK (and a good proportion of the rest of the world) a marriage can only be dissolved if one spouse accepts blame, or at least does not contest ‘fault’ for the ‘irretrievable breakdown’ of the marriage. Under any objective analysis this is at once an illogical and burdensome requirement, and additive of a level emotional anxiety which is irrational and unnecessary. Why should a married couple be required in law to prove that they are no longer in love with each other, before a ‘formal separation’ can be sanctioned, whereas an unmarried couple don’t ? Is there any societal value in making it more difficult for a marriage to be dissolved?
The then President of the Family Division in 2018 deprecated (if with some sympathy) the ‘consensual, collusive manipulation’ required under the present law to out-manoeuvre the current fault-based divorce system. Thankfully, soon the practice of drafting anodyne Particulars to support a divorce petition will be consigned to the annals of the past. The Divorce Dissolution and Separation Act 2020 received royal assent on 25 June 2020, and will be become law in the Autumn.
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