The Government has said it is considering the legislative changes needed as a result of a Supreme Court judgment that an unmarried father of three children whose long term partner died, is entitled to the widower’s contributory pension despite not being married or in a civil partnership.
A statement from the Department of Social Protection said this would be done "with all expediency".
The court made its ruling in the case of John O'Meara, and his three children, who challenged the High Court's decision to uphold the refusal of the Minister for Social Protection to grant him the pension.
In early 2021, Michelle Batey, 42, who had breast cancer, contracted Covid-19 and died.
She and her partner of over 20 years, John O'Meara, had three children together. They had decided to get married after Ms Batey's serious cancer diagnosis, but she passed away before this was possible.
Mr O'Meara was refused the Widower's Contributory Pension because the couple were not married and were not in a formal civil partnership.
He challenged the decision but the High Court rejected his case.
However, seven Supreme Court judges unanimously found in his favour.
They ruled the section of the social welfare legislation providing for the payment to be made only to someone who was married or in a civil partnership was invalid because it did not extend to Mr O'Meara as a parent of the couple's three children.
Chief Justice Donal O’Donnell said the distinction between a married and a non married surviving parent in the legislation was arbitrary and capricious and failed to hold parents equal before the law, contrary to the Constitution.
In his ruling, he said it was relevant that the payment in question was a social welfare benefit payable after an event giving rise to "a recognised need for support".
He said in general social welfare provisions tended not to distinguish between married couples and cohabitants. And he said bereavement and the impact of the death of a partner was not in any way different whether the survivor was married or not. He said the loss of a loving parent had the same impact on children whatever their parents' marital status.
Mr Justice O’Donnell said the Constitution recognised the rights of all children and there was no relevant constitutional distinction between children in a long standing non marital unit and those of a comparable family whose parents were married.
He said the stark differential treatment in the legislation at issue, required particular justification.
Mr Justice Seamus Woulfe in his ruling said the provisions in the legislation could not meet the test of rationality and proportionality. He said the differential treatment between a marital family and a non marital family could not be objectively justified.
In his ruling Mr Justice Gerard Hogan said the legislation amounted to unconstitutional discrimination. And he said the Oireachtas would have to provide for a nuanced and tailored solution which had due regard to the differences between a married couple on one hand and a cohabiting couple of long standing.
Speaking afterwards, Mr O'Meara, accompanied by his children, 16-year-old Aoife, Jack, 15, and 13-year-old Thomas, said he was delighted. He said it meant a lot to him and to his family, as well as to a lot of families in Ireland in the same position.
He said he felt his family was being treated differently and something needed to be done. The decision, he said, meant the family he had for the last 20 years had been treated with respect.
Sinead Lucey, managing solicitor of the Free Legal Advice Centres, said the case was a very important one for FLAC.
She said they felt it was important to fight it given the circumstances of the case and the guarantee of equality in the Constitution. It also reflected the way society was now, she said, as families came in all sorts of diverse formations.
Ms Lucey said it was not clear if it would affect other legislation.
Speaking on RTÉ’s News at One, she said it was crucial the Government studied the judgments of the court and made decisions about how to implement the court's ruling. She said it could decide to amend the legislation in a very narrow way or they could take a more generous approach.
Damien Peelo of Treoir, the national information service for unmarried parents, said it was a hugely important and very significant decision.
He said there were around 170,000 cohabiting couples in the State and 75,000 of those had children. He said a lot of those families felt excluded.
However, he said the ruling was quite narrow and related to this specific social welfare payment. He said it was not clear if it would affect other bereaved partners who had been long durable relationships if there were no children involved. However, he said marital status did not determine who grieved and Mr O’Meara was getting what he deserved.
The court found that the Oireachtas will now have to bring in legislation to give effect to its decision. And it found that it was a matter for the legislature to consider how best to do so, consistent with the equality provisions in the constitution.
The court did not make a ruling on the definition of the family under Article 41 of the Constitution, which will be the subject of an upcoming referendum. Previous Supreme Court rulings have said the constitutional protection afforded to the "family" applies only to a family based on marriage. Two of the decisions expressed a view that a 1966 ruling to this effect should be overruled.
The Chief Justice did not agree that the previous decision should be overruled. Mr Justice O’Donnell said the forum for any debate on what the Constitution should say was not the court. He said he did not find the exclusive concept of family in Article 41 "either attractive or admirable" or "well suited to a contemporary society". But he said if that was what the people chose in 1937, it was up to the people to decide how it should be altered.
The court’s declaration will take effect on Friday pending any submissions from the State about the impact of such a declaration. The court heard it would not affect others currently receiving the payment.
