Man loses challenge over refusal of widower's pension

Court rules man was not legal spouse of woman as past divorce not valid in State

The court ruled the man was not entitled to a widower’s pension. File photograph: Chris Maddaloni/Collins

The court ruled the man was not entitled to a widower’s pension. File photograph: Chris Maddaloni/Collins

 

A Co Kildare man is not entitled to a widower’s pension due to not being the legal spouse of a woman whom he married in a registry office in Belfast in August 1994, a month after he and his first wife got a divorce from a London court, the High Court has ruled.

Patrick McGovern’s application was correctly disallowed by the Department of Social Protection on the basis his divorce from his fist wife was not recognised as valid in Ireland, Ms Justice Miriam O’Regan found.

The judge said the Widower’s (Contributory) Pension and the Widowed or Surviving Civil Partners Grant can only be paid to a divorced person whose divorce is entitled to recognition under Irish law.

Although Mr McGovern and his first wife Elizabeth Casey had, following their 1994 London divorce, secured a recognised divorce in Ireland in 1999 under the Family Law (Divorce) Act 1996, and Mr McGovern was therefore free to marry Pauline Carbery McGovern before her death in 2016, he did not do so, the judge said.

Mr McGovern, a retired school teacher living in Co Kildare, took judicial review proceedings after the Department refused him a widower’s pension following the death of Ms Carbery.

They had married in a registry office in Belfast in August 1994. Both were living at Sandhurst Drive, Belfast, at the time.

Mr McGovern had previously married Ms Casey in August 1982 in Johnstownbridge, Co Kildare.

He and Ms Casey were granted a divorce by a London court about July 13th 1994. In July 1999, they got a divorce in the Republic, under the 1996 Act, in the Circuit Court in Naas, Co Kildare.

In her judgment on Friday, Ms Justice O’Regan rejected arguments Mr McGovern ought to be entitled to a presumption his marriage was valid.

She also dismissed arguments the relevant provisions of the Social Welfare Consolidation Act 2005 are unlawful or discriminatory or that his de facto family rights were breached.

She was satisfied only a party to a dissolved marriage in which dissolution is “recognised as valid in the State”, is included in the definition of spouse under section 123 of the 2005 Act.

She was also satisfied an assessment under the 2005 Act was within the competence of the Irish State to determine so that the relevant pension and grant will only be payable to a party who has been divorced where that divorce is entitled to recognition within the jurisdiction of Ireland.

In other findings, she said there was no evidence before the court to suggest Mr McGovern travelled to any portion of the UK, either at the date of making the application for divorce, the date of which had not been disclosed to the court, or at the date of securing the decree of divorce.

There was no evidence adduced by Mr McGovern that the divorce obtained in the UK was in fact in compliance with UK law, she said.

No grounds had been advanced for a reference of legal issues to the Court of Justice of the EU for determination, she further held.

Mr McGovern’s argument that he has a strong case that he would get an order obliging Ireland to recognise the divorce obtained in the UK, for the purpose of granting the pension and grant, was “effectively unstateable”, she said.