A Supreme Court judge has said that long-term cohabiting families should not be automatically excluded from the widow’s, widower’s or surviving civil partner’s contributory pension. Gerard Hogan J. would have allowed John O’Meara’s appeal and granted declarations of unconstitutionality, but his judgment records his own view and does not establish the Court’s final order.
Mr O’Meara had lived with Michelle Batey for about 20 years, and they had three children. The family lived in Co Tipperary. Ms Batey died in January 2021 from a combination of cancer and COVID-19. The couple had hoped to marry after her serious diagnosis, Hogan J. said, but she died before they could do so.
Mr O’Meara applied for the contributory pension after her death. The Social Welfare Act 2005 restricted eligibility to people who had been married or in a civil partnership with the deceased. A deciding officer confirmed the refusal on 27 May 2021 because Mr O’Meara and Ms Batey had neither married nor entered a civil partnership. It was accepted that he met the contribution conditions and would otherwise have qualified. In 2023, the pension rate would have been €225.50 a week, with a further €50 a week for each child.
Mr O’Meara and his children challenged the relevant provisions’ constitutionality. The High Court dismissed the claim, and the Supreme Court granted leave for a direct appeal.
Hogan J. considered that the family came within the protection of Articles 41 and 42 of the Constitution, and that the legislation’s automatic exclusion of long-term cohabitants in comparable circumstances unjustifiably discriminated against them under Article 40.1. He said the Oireachtas could treat marriage differently, but any distinction affecting families with substantial constitutional protection had to be measured and objectively justified. He would have overruled earlier decisions that excluded non-marital families from Articles 41 and 42, and a precedent concerning inheritance rights of children born outside marriage.
His proposed conclusion was limited: the pension provisions should be declared unconstitutional insofar as they automatically excluded long-standing cohabiting couples such as Mr O’Meara and Ms Batey. Hogan J. said any legislative response would need to account for differences between marriage and cohabitation. The extract contains Hogan J.’s judgment, which says he agreed with Woulfe J.’s judgment and proposed order while disagreeing with part of Chief Justice O’Donnell’s reasoning. It does not include the Court’s final order.