The courts should look with favour on the entitlement of spouses to make legally enforceable lifelong commitments to each other, the 38th Merriman Summer School in Lisdoonvarna, Co Clare, was told last night.
In a paper entitled, Where should Marriage and Society meet - and Why?, Prof William Binchy argued that because of the 1995 divorce referendum, the only commitment that marriage now required was a commitment that was revocable in character.
The TCD regius professor of law said: "I am not here arguing for the abolition of Article 41.3.2 of the Constitution, which prescribes a divorce jurisdiction. Rather I am offering for consideration the argument that the law should respect the option of lifelong commitment, as an alternative to the option of marriage subject to access to divorce."
Prof Binchy argued that "what was done in 1995 was the replacement of one model by another model: marriage subject to divorce".
He said: "Spouses who make a lifelong commitment should be entitled to have society respect their choice. If, in a society with a divorce jurisdiction, the spouses make it perfectly clear that the nature of their commitment excludes the option of divorce, society should not insist on defining marriage inconsistently with their choice."
He asserted: "The new definition of marriage as not involving a lifelong mutual commitment contradicts the actual commitment made by many couples when they marry."
