Father wins landmark ruling on getting widower’s pension
Unanimous verdict on unmarried man’s right to State scheme
A FATHER whose longterm partner died from cancer and Covid has won a landmark Supreme Court victory, entitling him to a widower’s pension even though the couple were not married.
The seven judges unanimously agreed John O’Meara and his three children should not be excluded from the State pension scheme.
They said it was never in doubt that Mr O’Meara and the late Michelle Batey, from Nenagh, Co. Tipperary, had lived together as a stable and loving family until her death in January 2021.
The couple had been in a committed relationship for 20 years, having met when she was 23 and Mr O’Meara was 20.
Their children, Aoife, Jack and Thomas, were born in 2007, 2008 and 2010 respectively.
Judge Donal O’Donnell said Mr O’Meara and Ms Batey never got married, largely because her experience of the marriage of her
‘She died before it was possible’
parents, who separated, ‘was such that she did not wish to replicate that for herself, her partner and children’. The judge continued: ‘However, when she became significantly ill with breast cancer, and her condition deteriorated, she and Mr O’Meara discussed marriage. Tragically, she contracted Covid and died before it was possible to make any preparations for marriage.’
He said the court agreed it was wrong that the widow’s, widower’s or surviving civil partner’s (WCP) contributory pension should be confined to those who were married or civil partners.
As of January 2023, a qualifying spouse can get a pension of at least €225.50 per week and an additional €50 for each dependent child over 12.
Mr O’Meara, an agricultural contractor, and his children had challenged the provision of the law governing the pension on the grounds that it infringed their right to equality under both the Constitution and the European Convention on Human Rights.
They claimed the provisions represented an impermissible discrimination against them.
They claimed they were a family, for the purpose of Article 41 of the Constitution. The High Court had rejected the case in October 2022. Judge Mark Heslin decided that for reasons including ‘the special place of marriage in the Constitution’, the legislation underpinning the scheme was not contrary to the Constitution’s equality guarantee and he could not interfere with the apparent aim of that legislation to support and promote marriage.
However, overturning that judgment, Judge O’Donnell said it was relevant that it was a social welfare benefit at the heart of the case, designed to give support.
He said social welfare benefits, unlike taxation or succession, did not tend to distinguish between married couples and those cohabiting. The judge added: ‘Bereavement and the impact of a death of a partner, both emotional and financial, is not in any way different whether the survivor is married or not. The loss of a loving parent has the same impact on children, whatever their parents’ marital status.’
He said both Mr O’Meara and Ms Batey had made the same PRSI contributions as they would have if married but were not receiving the same benefit in the form of the pension.
The increased payments of the WCP to surviving parents of children reflect the additional cost of raising children – a cost which is also not affected by the parents’ marital status, he said.
Judge O’Donnell said it was ‘arbitrary and capricious’ that the rules did not allow a pension to be given to a cohabiting survivor but would pay the pension to a divorcee if they had not remarried or cohabited with a new partner.
He added: ‘The reality is that WCP has developed overtime in a piecemeal fashion, starting from a view of society and family arrangements that no longer applies.’
After the ruling, Mr O’Meara said he was pleased with the verdict and hopes it will benefit a lot of families. He added: ‘I just felt my family were being treated differently. I thought something needed to be done. So many families are in the same position.
‘The law should be respectful of everyone’s situation – we are all equal as parents.
‘Things don’t change easily, but this [decision] has been great.’
The family were represented by FLAC, the free legal advice centres, which said the judgment ‘could provide significant guidance on the extent to which the current constitutional protections for families apply to families which are not based on marriage’.
It is understood that the pension payments will be backdated.
‘Arbitrary and capricious’