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Non-marital family refused leave to challenge pension exclusion

FLAC, the group that promotes equal access to justice, has said that legislation on social welfare and equality has not kept pace with Irish society’s increasing recognition of diverse families.

The organisation was reacting to a High Court decision to refuse judicial-review proceedings taken by a man and his three children, which challenged their exclusion from the Widow’s, Widower’s or Surviving Civil Partner’s Contributory Pension Scheme.

Johnny O’Meara and his partner of over two decades, Michelle Batey, had planned to marry after her recovery from breast cancer in 2020, but she died in January 2021 after contracting COVID-19.

Mr Justice Heslin noted that “most people in Irish society would, without hesitation, regard [Mr O’Meara, Ms Batey and their children] as a ‘family’”.

“As commonly understood in modern Irish society there are many forms of family and ‘family unit’, and the family unit where the relevant adults have made a choice not to marry makes a valuable contribution to Irish society, insofar as its bonds are those of mutual love and affection, care and support,” the judge said.

‘Not contrary’ to Constitution

Mr Justice Heslin, however, cited “the special place of marriage in the Constitution”, and said that the legislation covering eligibility for the pensions was not contrary to Constitution’s equality guarantee.

He stated that he could not interfere with the apparent aim of the legislation to support and promote marriage.

FLAC said that there were more than 75,000 cohabiting couples in Ireland with child dependents, and called for the adoption of the Social Welfare (Surviving Cohabitant’s Pension) Bill 2021, which is aimed at addressing the absence of provision in social-welfare law for such families in the event of a bereavement.

Lack of protection

Sinéad Lucey (FLAC’s manging solicitor, pictured) described the outcome of the case as “disappointing”, adding that it had highlighted the lack of protection in Irish law for families such as Mr O’Meara and his children.

Lucey stated that Constitution’s protection of marriage did not pose any barrier to the introduction by the Oireachtas of legislation to address such situations.

FLAC chief executive Eilis Barry (pictured) stated that such decisions by the courts raised questions about whether the Constitution’s equality guarantee was fit for purpose.