Q&A: What are the implications of the Supreme Court widower’s pension judgment?

What did the Supreme Court decide?

The court ruled the law under which the Widower’s Contributory Pension (WCP) was refused to John O’Meara after the death of his long-term partner, the mother of his three children, breached the guarantee of equality before the law for all human persons set out in Article 40.1 of the Constitution.

The loss suffered by a bereaved unmarried parent, and their obligations to their children, are the same loss and obligations as a married parent, or one in a civil partnership, the court said. Married and unmarried persons made the same PRSI contributions but section 124 of the Social Welfare Act 2005 meant only those married or in a civil partnership would get the benefit of those and their children would lose out. The distinction made by section 124 between such parents for purposes of payment of the WCP is arbitrary and capricious and cannot be objectively justified, it said.

Is that significant?

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Yes, in both legal and practical terms. The decision indicates that non-marital families can, in seeking to establish and vindicate their rights, look beyond Article 41, which affords special protection to the family, to the equality guarantee under Article 40. The practical effect is that, in addition to Mr O’Meara, thousands of people will become eligible for WCP payments.

What happens now?

The Government is expected to enact legislation providing for payment of the WCP to bereaved unmarried parents. Mr O’Meara, by virtue of his legal action, will be entitled to the WCP and should get backdated payments but other bereaved unmarried parents are expected to get prospective payments only. The 2016 census found there are 151,302 cohabiting couples in the State with about half of those living with children.

What about the situation of a bereaved unmarried cohabitee without children?

The court’s ruling relies on the fact that Mr O’Meara is a bereaved parent. Sineád Lucey of the Free Legal Advice Centres, which represented Mr O’Meara, took the view that any entitlements of bereaved childless cohabitees would require a separate determination in an appropriate case.

Does the judgment have any implications for the referendum in March to amend Article 41 of the Constitution to provide for a wider concept of family?

The judgment does not appear to have direct implications for the referendum because the court’s core finding was that section 124 breached the equality provision in Article 40.1. The court made no definitive finding in relation to whether Mr O’Meara and his children are a family within the meaning of Article 41. That Article gives, inter alia, special State protection to the family and pledges the State “will guard with special care the institution of marriage, on which the family is founded”. Five of the seven judges took the view it is for the people, not the court, to decide if Article 41 should be altered to provide for a wider concept of family.

The majority court, in a decision authored by the Chief Justice, indicated a non-binding view that a 1966 Supreme Court decision to the effect the existing constitutional protection in Article 41 is limited to a family based on marriage is “correct as a matter of interpretation” or had not been shown to be “clearly wrong” such as to require it to be overruled. Two judges disagreed, taking the view the O’Mearas were entitled to constitutional protection as a family under Article 41 and the Article 42 children’s rights amendment was also in play in that regard.

Could there be indirect implications for the referendum?

Possibly. From a reading of the judgments, and particularly the opposing views of the Chief Justice and Mr Justice Gerard Hogan, both renowned constitutional lawyers, concerning the interpretation of Article 41, it could be argued that amending Article 41 to include a wider definition of family might afford more legal certainty about constitutional protection for non-marital families. Advocates for change may be encouraged by the Chief Justice’s personal view he did not find the “exclusive” concept of family in Article 41 “to be either attractive or admirable or one that is well suited to a contemporary society, at least as I understand it”.

However, in his non-binding observations, the Chief Justice said the natural understanding of the text of Article 41 is that the family referred to is the family based on marriage. Mr Justice Hogan said it did not follow that other forms of family life were thus automatically excluded from the protection of Article 41 and the court should make findings to that effect.

The Chief Justice disagreed and reiterated it was for the people, not the courts, to choose in what way the provision should be altered.

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