The long-term partner of a woman who died with Covid-19 and their three children have lost their High Court challenge over the Minister for Social Protection's refusal to grant the man the Widower's Pension.
In his judgement, Mr Justice Mark Heslin said that while he had enormous sympathy for John O'Meara - whose partner of more than 20 years Michelle Batey died on 31 January 2021 as a result of contracting Covid-19 - and their children, the court had to dismiss their claim.
In their action, Mr O'Meara and his three minor children had claimed that sections of the 2005 Social Welfare Consolidation Act which excluded him from receiving the pension, because he was not married to nor had entered into a formal civil partnership with his late partner, despite their long relationship together amounted to a discrimination.
The action was against the Minister for Social Protection, Ireland and the Attorney General the family which had opposed the claim.
Mr Justice Heslin said that the challenge centred on the constitutionality of parts of the 2005 Act and the entitlement of the children, through their father Mr O'Meara were entitled to the payment.
The judge held that they were not entitled to the payment and rejected their claims that the State's refusal to make the payment amounted to a form of discrimination.
He said that the legislation concerning who is entitled to be paid this particular pension is extremely wide, however it does not apply to persons in the applicants' situation.
It was the role of the Oireachtas to decide exactly who should benefit from this pension, the judge said, adding that the making of such decisions "is not a role which this court can legitimately play."
He said cohabitation was not a qualification requirement for the entitlement of the payment.
The case, he said, was ultimately about the State's decision to support not families but for those who make a choice to enter into a marriage contract whose spouse has died.
The payment, the judge also held, is not a benefit for any child paid through a parent and is not a payment directed at supporting families with children.
It is directed, he said, at supporting a bereaved spouse and is a payment to which a person is entitled if they were married to the deceased.
It is, he added, payable irrespective if the said couple had any children or not.
In their statement of opposition, the respondents had argued that the payment for the Widowers Contributory Pension (WCP) is for persons who have entered into a civil partnership and who have therefore entered into a legally recognised relationship that confers rights and obligations on the contracting partners.
The Act provides for certain supports to be provided to the surviving spouse or civil partner including assistance in dealing with the economic hardships of that loss, the State submitted. .
The establishment of the payment is one of the mechanisms by which the State supports the institution of marriage, and the fostering of the legal and social bands which derive from that institution, the respondents said.
In his decision, the judge also noted that the couple never married but had enormous love for each other in the two decades they had been together.
It was claimed that Mr O'Meara had planned to marry Ms Batey but the couple were unable to go through with their plans.
The couple, he said, had not entered the institution of marriage and thus did not assume the particular rights and obligations between spouses.
Tragically, he said, Ms Batey was cruelly taken away before the couple could get married.
She was diagnosed with breast cancer in 2018 and had been recovering well following treatment including chemotherapy.
However, her condition made her vulnerable to Covid-19, which she contracted sometime in December 2020.
Following her death Mr O'Meara, an agricultural plant contractor of Grawn, Toomervara, Nenagh, Co Tipperary applied for the widower's pension, in respect of him and his three children on the basis the children reside with him.
In April 2021, deciding officers on behalf of the Minister refused the application, on the grounds that there was no civil marriage between Mr O'Meara and Ms Batey.
He sought to revise that decision claiming that he and Ms Batey had lived together full time, in effectively a marital relationship for twenty years.
He also submitted that the couple had been cohabiting together for many years and qualified for the pension under the 2010 Civil Partnership laws.
That application was also unsuccessful.
Mr O'Meara claimed he was told that the Minister was bound by legislative provisions in the 2005 Act restricting the payment of survivor benefits to those who were married or in a formal civil partnership.
As a result of that refusal, Mr O'Meara and his three children brought judicial review proceedings challenging the Minister's decision.
It is claimed that the Minister's refusal, and the contents of the Act amounts to a discrimination against both Mr O'Meara and their children.