THE SUPREME COURT is today set to make a ruling in a case taken by a man who was denied access to a Widower’s Pension because he was not married to his late partner.
The ruling may have an impact on the campaign for the upcoming referendum which seeks to provide for a wider concept of family (i.e. not one only based on marriage).
John O’Meara’s partner Michelle Batey died on 31 January 2021 after contracting Covid-19.
The couple had been together for 20 years and planned to marry following Batey’s recovery from breast cancer but sadly never got the chance. They shared three children.
O’Meara, an agricultural plant contractor from Co Tipperary, applied for the widower’s pension in respect of him and his children, on the basis the children reside with him.
When he was denied access to the payment, he and his three minor children Jack, Thomas and Aoife challenged the constitutionality of legislation governing the Widower’s Pension Scheme.
In their action the family claimed that sections of the 2005 Social Welfare Consolidation Act which excluded Mr O’Meara from receiving the pension – because he was not married to Ms Batey nor had they entered into a formal civil partnership – amounted to a discrimination.
The action was against the Minister for Social Protection, Ireland and the Attorney General.
The High Court in October 2022 ruled that O’Meara was not entitled to a Widower’s Pension or Surviving Civil Partner’s Contributory Pension Scheme.
The family, represented by Flac (the Free Legal Advice Centre), appealed the case to the Supreme Court and a ruling is expected to be delivered later today.
CEO Eilis Barry said Flac is eagerly awaiting the Supreme Court ruling and any implications it may have ahead of the March referendums.
“They may say the wording [in the Constitution] needs to be such and such [for people to] get rights, but I have no idea what they’re going to say,” she told The Journal.
The need to extend constitutional protection to families, other than those based on marriage, is central to the upcoming referendums due to take place on 8 March.
People will be asked to vote on a number of amendments including amending Article 41 of the Constitution to provide for a wider concept of family.
The so-called family amendment, the 39th Amendment of the Constitution, proposes to amend Article 41.1.1 to insert the words “whether founded on marriage or on other durable relationships”.
‘Durable relationships’
While many people have welcomed the idea of broadening the definition of family to include unmarried couples and one-parent families, for example, there has been speculation in recent weeks as to what exactly a ‘durable relationship’ is.
Some people have asked if the definition could include, for example, people in polyamorous relationships. Minister Roderic O’Gorman last week clarified that such relationships would not be covered.
However, Flac and others have warned that the current wording will likely result in more people being forced to take legal action so the courts can define what a ‘durable relationship’ is.
In its recommendations to the Government, Flac notes: “The use of the term “durable relationships” in the constitution is novel.
“On the face of it, it would appear to provide that single-parent families will enjoy constitutional protection (on the basis that those families are founded on the relationship between a parent and their child or children).
“Out of an abundance of caution, it may be worth considering amending the proposed new wording as follows:
Adding the following after “durable relationships”: “such as that which exists between parents and children”.
Barry said there needs to be “absolute clarity” as to what exactly a durable relationship is so members of the public know what they are voting for.
“We really welcome the fact that families that aren’t based on marriage will be given recognition and protection, but the phrase ‘durable relationship’ hasn’t been defined.
What does that mean? What is a durable relationship? Does it clearly apply to lone parents? Does it apply to long-term cohabiting couples?
“TDs and senators should be debating what relationships are covered and what it will mean. And that will do away with your misinformation or your speculation or your fearmongering – you need something to replace that.
“It will let voters know what they’re actually voting for, rather than speculating or leaving it to the courts.
“There needs to be absolute clarity, people should know what will it mean for a lone parent, what will it mean for long-term cohabitating couples in terms of social welfare, in terms of tax, in terms of succession.”
If the Government fails to clearly set this out, Barry said people “will have to go to the courts and it will be the courts who will be defining what’s a durable relationship”.
Such a scenario is unfair both on individuals and the courts, she added, and should be “a matter for (the Oireachtas) to define”.
‘Unimaginable loss’
Michelle Batey was diagnosed with breast cancer in 2018 and had been recovering well following chemotherapy. However, her condition made her vulnerable to Covid-19 which she contracted in December 2020.
In his High Court ruling in October 2022, Mr Justice Heslin noted that the applicants’ pain is “unimaginable to those who have not experienced such loss”.
“All four applicants were present in court throughout the hearing, this loss as well as their deep love and concern for each other was evident”.
Heslin also stated that “most people in Irish society would, without hesitation, regard [Mr O’Meara, Ms Batey and their children] as a family”.
“As commonly understood in modern Irish society there are many forms of family and ‘family unit’, and the family unit where the relevant adults have made a choice not to marry makes a valuable contribution to Irish society, insofar as its bonds are those of mutual love and affection, care and support.
“Doubtless this description applies to [Mr O'Meara's] relationship with his late partner and, indeed, to the family unit which now comprises of all the applicants in these proceedings, for which this court has nothing but respect.”
However, Heslin decided that, for reasons including “the special place of marriage in the Constitution”, the legislation was not contrary to the Constitution’s equality guarantee and that he could not interfere with the apparent aim of the legislation to support and promote marriage.
Legislation to approve the referendums was debated in the Dáil last week and will be discussed in the Seanad this week.
Opposition parties including Labour, the Social Democrats, People Before Profit and the Rural Independents group are tabling amendments to the legislation, while Sinn Féin is reserving its position and seeking clarity on a number of issues.
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