A bereaved father and his three children have lost their challenge to the constitutionality of a law under which he was refused a widower’s contributory pension because he and his partner of more than twenty years were not married.

His partner was in her forties when she died from Covid-19 early last year. The couple had planned to marry after her recovery from breast cancer in 2020. The father and their children, represented by the Free Legal Advice Centres (FLAC), brought a High Court challenge to the constitutionality of the 2005 legislation governing the Widower’s Contributory Pension (WCP) scheme.

Mr Justice Mark Heslin rejected the case for reasons including that the relevant law was not contrary to the Constitution’s guarantee of equality. He said he could not interfere with the aim of the legislation to support and promote marriage. He disagreed with the applicants the reason for the WCP is to protect the family, which includes the children. That is not the reason for, or the aim of the WCP, and nor was this case about families or this particular family.

The case concerned a specific social welfare payment paid for the benefit of married couples and those who enter into a civil partnership. Justice Heslin said, “Cohabitation is not a qualification requirement for the entitlement to the WCP because, by entering into the marriage contract, the relevant parties assume legal rights and duties towards each other. It is that institution that the legislation legitimately seeks to support and promote.”

The focus of the challenge was on the alleged unconstitutionality of the relevant part of the 2005 Act in respect of the children’s position. The existence or not of children is “wholly irrelevant” to the entitlement of a qualifying recipient to be made the WCP. “The logic of the case advanced by the applicants is that the WCP is properly payable to all, regardless of marital status”, he continued.

“Even if a deceased had not cohabited with their partner for years, the pension was payable, subject only to social insurance requirements having been met. Because having a child is not a qualification requirement for the WCP. The argument was that the WCP is also properly payable to an unmarried person who never had children with their partner, irrespective of how many years or decades earlier the couple ceased to cohabit.

“To accept what the applicants argued would mean the court impermissibly interfering in policy decisions and the carefully constructed architecture of the State’s social welfare system. Nothing in his judgment was intended to cause further distress or pain to the applicants, who clearly comprise a family unit for which this court has nothing but respect.”

In a statement after the judgment, the FLAC said the 2016 census showed there are more than 75,000 cohabiting couples in Ireland with child dependants. The Social Welfare (Surviving Cohabitant’s Pension) Bill 2021 aims to address the absence of provision in social welfare law for such families in the event of a bereavement, it noted.


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