by Owen Burke October-08-2024 in Private Client, Property
Introduction
The rights of surviving parents were addressed by the Supreme Court when it issued judgment in the case of John O’Meara and Others v. The Minister for Social Protection, Ireland and the Attorney General (John O’Meara & Ors v The Minster for Social Protection, Ireland and The Attorney General [2024] IESC 1).
Background
John O’Meara and Michelle Batey were partners for twenty years prior to her death in January 2021. They had three minor children who were also parties to the court case.
Following the death of Michelle Batey, John O’Meara applied for the widower’s contributory pension (WCP) under the Social Welfare Act 2005 (“the 2005 Act”). The WCP is a weekly payment that is made to the husband, wife, or civil partner of a deceased person. The provisions of the 2005 Act state that the person applying for WCP, or their deceased civil partner, must have sufficient social insurance contributions to qualify for the payment. The payment may also be increased if the applicant has dependent children. The increased payment can be paid up until the child is 18 or it can continue until the child is 22 if they are in full-time education.
The provisions of the 2005 Act meant that only those who have been married or who have entered civil partnerships can receive the WCP. As a result, Mr O’Meara’s application was rejected by the Social Welfare Deciding Officer in May 2021.
Following this, Mr O’Meara and his three children challenged the constitutionality of the provision of the 2005 Act. Their claim failed in the High Court, and they appealed to the Supreme Court.
Findings
The Supreme Court found that the relevant provisions of the 2005 Act were invalid, with Chief Justice O’Donnell stating that the provisions were “arbitrary and capricious”.
It noted that the 2005 Act provides for a contributory social welfare benefit that arises from a loss, which gives rise to a recognisable need for support. The Supreme Court concluded that this loss is not different because of the marital status of the survivor.
Furthermore, the provisions of the 2005 Act allow for an increase in WCP if there are dependent children. The increased payment for dependent children recognises that the survivor may not just be a spouse or civil partner but also a parent, who will now have additional expenses to maintain the dependent children.
The Supreme Court confirmed that the Constitution recognises the rights of all children regardless of the marital status of their parents. It further concluded that parents owe the same duties and obligations to their children regardless of their marital status.
It also concluded that the 2005 Act which provided for the payment of WCP to a surviving spouse with dependent children, but refusing the same to a survivor of an unmarried couple with dependent children was not compatible with the equality guarantee under Article 40 of the Constitution.
Significantly the Supreme Court re-affirmed the longstanding position that the constitutional family protected by the Constitution was the family based on marriage.
In his judgment, Chief Justice O'Donnell also noted that under the 2005 Act, Mr O’Meara had made the same PRSI contributions as a widower obtaining WCP and had suffered the same loss but would not be able to receive the same benefit. The Supreme Court found that rejecting his application for WCP would also negatively affect his children.
It is important to note that the Supreme Court relied on the fact that Mr O’Meara is a bereaved parent with dependent children in their judgment, so this decision does not establish whether the same entitlements would apply to a survivor of an unmarried couple with no dependent children.
Implications
The decision of the Supreme Court means that bereaved unmarried partners with dependent children will now be eligible for WCP. It is expected that the Government will introduce legislation to provide for payment of WCP to these bereaved unmarried parents.
This decision demonstrates that non-marital families can rely on the equality guarantee under Article 40, to uphold their rights. While it is limited to particular factual circumstances, it is likely to be a springboard for further extensions of rights in the future.
If you have any questions or queries in relation to these changes, please contact Owen Burke.
Owen Burke TEP CTA
Senior Associate Solicitor, Trust and Estate Practitioner, Chartered Tax Adviser
HAYES Solicitors LLP
Lavery House
Earlsfort Terrace
Dublin 2
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About the Author
Owen Burke
Owen is a senior associate solicitor, Trust and Estate Practitioner and Chartered Tax Adviser in the Private Client team at Hayes. He specialises in Wills, Probate, Succession and Tax Planning and Enduring Powers of Attorney. He is a full member of the Society of Trust and Estate Practitioners (STEP). He is also a member of the STEP Ireland committee and the Dublin Solicitors Bar Association Probate and Taxation Committee.