The Supreme Court has ruled that a man whose long-term partner died in 2021 is entitled to a widower’s contributory pension (WCP)

John O’Meara and Michelle Batey, who died in 2021, had lived together and had three children, but had never married or entered into a civil partnership.

His application for a WCP had been refused by the Department of Social Protection, a decision that was later upheld by the High Court.

Rules ‘arbitrary’

In his ruling, Chief Justice Donal O’Donnell described the rules governing the payment of WCP under section 124 of the Social Welfare Consolidation Act 2005 as ”arbitrary and capricious”.

“Bereavement and the impact of the 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 stated.

The Chief Justice also pointed out that O’Meara had made the same PRSI contributions as a widower obtaining a WCP – and had suffered the same loss – but would not receive the same benefit.

Children’s rights

“The Constitution as interpreted, recognises the rights of all children, and obligations of their parents, irrespective of the status of their parents. In this respect, there is no distinction – and certainly no relevant constitutional distinction – between children in a long-standing non-marital unit such as the O’Meara’s, and those of a comparable family whose parents were married,” he added.

The Chief Justice also highlighted that the relevant section refused any payment by reference to a child of a non-marital couple, no matter how well established they were at the time of death, but permitted it in the case of children of a divorced couple “who were, by definition, not married at the time of the death of one party, and who may indeed have gone their separate ways many years before”.

The court quashed the decision to refuse O’Meara a WCP, and made a declaration that section 124 of the 2005 act was inconsistent with the Constitution “insofar as it does not extend to Mr O’Meara as a parent of the second, third and fourth appellants”.

The Chief Justice said that this did not create a complete solution for the O’Mearas, since it would require a legislative amendment to positively provide for benefit in their case.