The exclusion of a bereaved unmarried father of three from the widower’s contributory pension (WCP) scheme is unconstitutional, the Supreme Court has unanimously ruled.
The “arbitrary and capricious” section 124 of the Social Welfare Act breaches the guarantee of equality in Article 40.1 of the Constitution by refusing the WCP payment to a bereaved unmarried parent with exactly the same obligations to their children as a bereaved married parent, the court found.
John O’Meara is entitled to a declaration that section 124 is unconstitutional insofar as it does not extend to him as a parent of his three children, the court held.
Final orders will be made on Friday, including quashing the refusal of the payment to Mr O’Meara.
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Legislation will be required to provide for backdated WCP payments to Mr O’Meara, the Chief Justice, Mr Justice Donal O’Donnell, noted.
Mr O’Meara, an agricultural contractor from Nenagh, Co Tipperary, and his children, represented by the Free Legal Advice Centres, took the case after he was excluded from the WCP because he was neither married to, nor in a civil partnership with Michelle Batey, his partner of almost 20 years and mother of his children.
The couple had not married largely because of Ms Batey’s experience of her parents’ marriage and separation. After she became ill with breast cancer, they decided they would marry but were unable to after Ms Batey fell into a coma after contracting Covid-19. She died in 2021.
A majority of the court, five of the seven judges, agreed it was unnecessary in this case to decide the correctness or otherwise of a key 1966 Supreme Court decision, the Nicolaou decision, that the meaning of “family” under Article 41 of the Constitution is limited to families based on marriage. Article 41.3 pledges the State “to guard with special care the institution of marriage, on which the family is founded, and to protect it against attack”.
The Chief Justice, noting proposals to amend Article 41 are before the people in referendums in March, said the forum for debate on what the Constitution should say on this is not the court. For the court to so find would exceed the limit of permissible interpretation of the Constitution, he considered.
For his own part, he did not find the “exclusive” concept of family in Article 41 “either attractive or admirable or one that is well suited to a contemporary society, at least as I understand it”.
“If it was an experiment in implementing social views, or the teaching of a particular church, in the law then it cannot be said to have been successful,” he said. “But, if it is what the people chose in 1937, and how the document has been repeatedly understood, then in my view it is for the people to choose in what way that provision should be altered.”
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