THE SUPREME COURT has upheld a constitutional challenge of a man who was denied access to the widower’s pension because he was not married to his long-term partner.

The seven-judge court unanimously ruled that John O’Meara is indeed entitled to the widower’s pension despite the fact he was not married to his partner of 20 years, Michelle Batey, when she died in 2021.

Chief Justice Donal O’Donnell today told the court that the distinction in the legislation between a married and unmarried couple was “arbitrary and capricious”.

Speaking after the hearing this morning, Mr O’Meara said he was delighted with the ruling, noting it will help many other families in similar situations.

“It’s amazing, it means a lot in respect of our family,” Mr O’Meara said, adding that families, regardless of whether or not the parents are married, are “all equal”.

Reflecting on his decision to take legal action, he told reporters: “These things have to be done, things don’t change easily. You have to put the pressure on and put the work in.”

The family was represented by Flac (Free Legal Advice Centres).

Welcoming today’s ruling, a spokesperson for Flac said the judgment “extends the principle of equality in the context of a social welfare payment, recognising that a non-marital family fulfils the same social function as a marital family and experiences the same loss when a parent dies”.

The court ruled that the Oireachtas will now have to bring in legislation to give effect to today’s decision. It is understood that Mr O’Meara’s payments will be backdated to when he first applied for the pension.

The judgment was eagerly awaited ahead of the upcoming referendum which seeks to provide for a wider concept of family (i.e. not one only based on marriage) in the Irish Constitution.

The ruling of the Chief Justice also confirmed that the constitutional protection of the family under Article 41 is confined to the marital family.

Eilis Barry, Flac CEO, said that decision “makes clear that legislation will be needed to give effect to any new constitutional provisions in the first instance in areas such as social welfare, tax, succession and in the definition of durable relationships”.

In relation to the referendums happening in March, Barry said Flac has “repeatedly called for the publication of draft legislation outlining the changes that the proposed ‘family’ amendment would give rise to”.

Three children

Ms Batey died on 31 January 2021 after contracting Covid-19.

The couple had been together for 20 years and planned to marry following Ms Batey’s recovery from breast cancer but sadly never got the chance. They shared three children.

Mr 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 Mr O’Meara was not entitled to a Widower’s Pension or Surviving Civil Partner’s Contributory Pension Scheme.

The family appealed the case to the Supreme Court and the seven-judge panel heard the case in October 2023.

Ruling

The Supreme Court today concluded, unanimously, that the provisions of the Social Welfare and Pensions Act are “invalid having regard to the provisions of Article 40.1 of the Constitution insofar as it does not extend to the first appellant as a parent of the second, third and fourth appellants”.

In the ruling issued today, Justice O’Donnell (with Dunne, O’Malley, Murray and JJ Collins concurring) wrote that the provision of the widower’s contributory pension (WCP) relates to “a loss giving rise to a recognised need for support, where that loss, both emotional and financial, is not in any way different whether the survivor is married or not”.

“Furthermore, WCP is increased when there are dependent children which recognises the survivor may not just be a spouse (or civil partner) but is also a parent and the survivor will have additional costs and expenses associated with maintaining any dependent children.

“The Constitution as interpreted recognises the rights of all children irrespective of the status of their parents. Nor is there any difference in the duties and obligations which parents, married or unmarried, owe to their dependent children.

“The differentiation made by the section is not made on the basis of present marital status: the definition of spouse and civil
partner includes a divorced spouse and civil partner after dissolution.

“Furthermore, the section recognises cohabitation but only negatively: [section] 124(2) and (3) removes the entitlement to WCP on remarriage, entry into a new civil partnership or if and so long as the recipient is a cohabitant.

“Thus, the Act recognises that an unmarried partner supplies the same benefits to a partner and children as a married partner does, but only for the purpose of removing the benefit.”

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‘Glaring gap’

Labour TD Alan Kelly, who is friends with Mr O’Meara, said he is “delighted” with today’s ruling.

“This case underscores the pressing need to address the disparity in our social protection system. Johnny O’Meara’s advocacy has brought attention to a glaring gap that denies essential support to grieving partners in cohabiting relationships.

“It is fundamentally unjust that if a partner of a cohabiting couple passes away, they currently have no entitlement to a widow’s or widower’s pension.

“This inequity persists, the law must evolve to recognise and support the diverse ways in which families are formed and maintained.

“Our current system fails to provide adequate protections for those who choose not to marry or those who simply haven’t formalised their partnership,” Kelly said.

‘Unimaginable loss’

Ms 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.