The Supreme Court will give judgment on Monday on a significant constitutional challenge by a bereaved unmarried man and his three children over their exclusion from the widower’s contributory pension scheme.
The decision by the seven-judge court could provide guidance on the extent to which the constitutional protection for the family applies to families not based on marriage, with potential implications for the proposed “family” amendments to the Constitution in the referendums in March.
John O’Meara and his children, represented by the Free Legal Advice Centres, took the proceedings over their exclusion from the Widow’s, Widower’s or Surviving Civil Partner’s Contributory Pension Scheme, which is not available to bereaved families where the parents were not married.
Mr O’Meara, an agricultural contractor from Nenagh, Co Tipperary, applied for the payment on behalf of his family after the death of Michelle Batey, his partner of almost 20 years and mother of the children. The couple had planned to marry but she fell into a coma and died in January 2021 after contracting Covid-19 when she was recovering from breast cancer.
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In October 2022, the High Court’s Mr Justice Mark Heslin, having noted the special place of marriage in the Constitution, ruled the legislation underpinning the scheme was not contrary to the Constitution’s equality guarantee and said the court could not interfere with the apparent aim of that legislation to support and promote marriage.
The O’Mearas then secured a leapfrog appeal, one direct to the Supreme Court rather than to the Court of Appeal. A panel of Supreme Court judges said the appeal raised “matters of general public importance” and “may require the court to address its past precedents relating to article 41”.
Article 41.1 provides that the State “recognises the family as the natural, primary and fundamental unit group of society, and as a moral institution possessing inalienable and imprescriptible rights” and “guarantees to protect the family in its Constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the nation and the State”.
Article 41.3 sets out that the State pledges “to guard with special care the institution of marriage, on which the family is founded, and to protect it against attack”.
During the appeal hearing last October, senior counsel Derek Shortall, for the family, argued the High Court was wrong to conclude this particular benefit was designed only to provide for the needs of a surviving spouse.
This particular payment “appears to be an outlier” in having the effect of excluding children, he submitted. “The blanket exclusion of this parent, these children, this family is essentially based on prejudice and stereotype,” he said.
Attorney General Rossa Fanning, opposing the appeal on behalf of the State, said the issue for determination was narrow – whether the Oireachtas was entitled, as a matter of policy choice, to provide a social welfare benefit to surviving spouses of a marriage that it does not provide to surviving cohabitees.
In the case of the widower’s pension, the sharp distinction was “entirely consistent” with the Constitution, particularly considering article 41.3, he submitted.
While it “may well be that court cases highlight anomalies to the legislature”, his task in this appeal was to “stand over a policy choice that has been made”, he said.
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