The Government will quickly introduce legislation to extend widows and widowers’ pensions to surviving partners in non-marital families, after Monday’s Supreme Court judgment found the relevant social welfare legislation was unconstitutional.
But it is understood that Ministers and senior officials have been told that the judgment has no implications for the proposed referendum which seeks to expand the constitutional definition of family beyond the family based on marriage.
Tipperary man John O’Meara was denied payment of a widower’s pension because he was neither married to nor in a civil partnership with Michelle Batey, his partner of almost 20 years and the mother of his children. Ms Batey died in 2021 after contracting Covid-19 while she was recovering from breast cancer.
Mr O’Meara challenged the constitutionality of the social welfare legislation. The seven-judge Supreme Court on Monday quashed the refusal of the benefit and ruled the relevant provision of the social welfare legislation was invalid under the Constitution.
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The referendum Bill is being debated by the Seanad, where it is expected to be voted through this week, paving the way for polling day to be fixed for March 8th.
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During the debate the former minister for justice Michael McDowell questioned the need to hold the referendum in light of the judgment. Minister for Equality Roderic O’Gorman defended the Government proposals as it seeks to get the necessary legislation for the referendum over the line in the Oireachtas this week.
It is understood Ministers and senior officials believe the judgment bolsters the arguments for the referendum. They say that because the case was decided on equality grounds, not on the basis that the O’Mearas were a “family” under article 41 of the Constitution, it strengthens the case for changing article 41.
In his judgment, Chief Justice Donal O’Donnell, said: “For my part, I do not find the exclusive concept of family in article 41 that was contained in the 1937 Constitution either attractive or admirable or one that is well suited to a contemporary society... 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.”
Mr Justice O’Donnell went on to explicitly reject the argument that the O’Mearas are a family as understood under article 41, saying that to do so would be a step too far in extending the meaning of the Constitution, while acknowledging that the wording may well be changed in the referendum.
In a statement, the Government said Minister for Social Protection Heather Humphreys and Attorney General Rossa Fanning were examining the judgment, including what legislation would be required to comply with it. This will be done “with all expediency”, the statement said.
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