Partner of woman who died is entitled to the widower’s pension – Supreme Court

The long-term partner of a woman who died is entitled to the widower’s pension, even though they were not married nor were in a civil partnership, the Supreme Court has ruled.

John O’Meara, and his three children, challenged a High Court decision to uphold the refusal by the Department of Social Protection to grant him the pension.

On Monday, the Supreme Court said that the section of the legislation which led to the exclusion of Mr O’Meara from receiving the pension was invalid and unconstitutional as it did not extend to Mr O’Meara and his children.

Michelle Batey, Mr O’Meara’s partner of over 20 years, died after she was diagnosed with Covid-19 in January 2021.

Mr O’Meara claimed the Widowers Contributory Pension but was refused on the grounds that he was not the widower or surviving civil partner of Ms Batey, as was required by a section of the 2005 Act.

Mr O’Meara and their children, claimed that sections of the Social Welfare Consolidation (WCP) Act was discriminatory.

It was claimed that the family were excluded from receiving the pension as the couple did not marry nor had they entered a civil partnership.

Mr O’Meara and his three minor children challenged the constitutionality of the legislation, however it was dismissed by Mr Justice Mark Heslin last year.

But on Monday, the seven-judge Supreme Court unanimously overturned the decision, saying that the section 124 of legislation was “invalid”, having regard to Article 40.1 of the Constitution of Ireland, which states that all citizens should be equal before the law.

The Chief Justice Donal O’Donnell said that the provision is a contributory social welfare benefit “addressed 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.

Justice O’Donnell added: “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.”

He said the distinction made between the children of a surviving spouse and the children of a surviving partner of a non-martial relationship was “arbitrary and capricious”.

Justice Seamus Woulfe said: “There is no rational connection between the legitimate aim of promoting and encouraging marriage and civil partnership and the means employed in the 2005 Act, which involves denying the appellants the benefit of the PRSI contributions paid by both the first appellant and by (Michelle Batey), thereby adversely impacting upon the children.

“While couples may have a choice whether or not to marry, children cannot make the choice between marriage and cohabitation.”

Justice Woulfe and Mr Justice Gerard Hogan said that previous case law which found that the family referred to in Article 41 is limited to family based on marriage is wrong.

They said that the case and subsequent case law “accepting and endorsing it” should be overruled, and the appellants were a family for the purposes of Article 41.

Justice Hogan held that the decision was “plainly wrong and totally unsatisfactory at almost every level”, and it was based on an incomplete interpretation of the text of the relevant constitutional provisions.

Following the judgment, Mr O’Meara said: “I’m delighted. It’s been an amazing morning and to get the same kind of acceptance as any other family, it means a lot as well.

“It means we’re being treated as equals and as a family, which is far more important.”

Mr O’Meara said that he and his late partner had intended to marry but were unable to.

“There were so many complications ahead of us. Covid came along and put the final straw in that one,” he told RTE’s News At One.

“The intent was there, but getting there that was the hard part.”