The Supreme Court judgment in John O’Meara and his children’s appeal over a surviving-partner pension records a proposed declaration that the statutory exclusion of O’Meara was inconsistent with the Constitution. The supplied extract contains Chief Justice O’Donnell’s judgment and its proposed remedy; it does not include the Court’s final orders or the other judgments in the case.
O’Meara and Michelle Batey lived together from about 2002 and had three children. The judgment says they formed a committed, stable, long-term family unit and that Batey died in 2021 after cancer and COVID-19. They had discussed marriage as her illness worsened, but she died before arrangements could be made.
O’Meara applied for the Widow’s, Widower’s or Surviving Civil Partner’s (Contributory) Pension. The application was refused because he had not been married to Batey or in a civil partnership with her. The judgment states that both had sufficient social insurance contributions to qualify if they had been married or civil partners. A qualifying surviving spouse with dependent children would receive an increased payment.
O’Donnell concluded that the exclusion, insofar as it denied the pension to O’Meara as a parent of the three appellants, drew an arbitrary distinction and failed to treat them equally before the law. He reasoned that the death of a parent and the resulting financial loss to children do not depend on whether their parents were married. He also noted that the legislation can pay a pension to someone whose former spouse has died, although that person was not married to the former spouse at the time of death.
The appellants also argued that the Constitution’s Article 41 definition of family should include non-marital families. O’Donnell rejected the invitation to overrule the precedent limiting that Article 41 family to marriage, concluding it was unnecessary to decide the appeal and was not clearly wrong. He said non-marital parents and children nonetheless have constitutional rights and protections. He did not reach a concluded decision on the separate European Convention challenge.
As a remedy, O’Donnell proposed declaring section 124 of the Social Welfare Consolidation Act 2005 inconsistent with the Constitution insofar as it did not extend the pension to O’Meara as a parent. He also proposed quashing the Minister’s refusal. He said that would not itself provide payment: legislation would be needed, and the Oireachtas would have to decide how to make provision consistent with Article 40.1.