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'Our lives didn't have to be this way': Unmarried parents reflect on landmark Supreme Court ruling

Thousands of families may be entitled to extra pension payments.

A NUMBER OF families are eagerly awaiting clarification on how a Supreme Court ruling on pensions for widows and widowers will affect them.

In a landmark judgment, the Supreme Court yesterday unanimously ruled that John O’Meara is entitled to the widower’s pension despite the fact he was not married to his partner of 20 years, Michelle Batey, when she died in 2021.

Mr Justice Donal O’Donnell told the court that the distinction in legislation between a married and unmarried couple was “arbitrary and capricious”.

WhatsApp Image 2024-01-22 at 11.47.21 Johnny O'Meara and his three children outside court after the ruling this morning Órla Ryan Órla Ryan

Speaking after the hearing yesterday, Mr O’Meara said he was delighted with the ruling, noting it will help many other families in similar situations.

“This decision recognises that my children and I are a family like any other, and that the treatment we endured over the past number of years was unjustified discrimination at the hands of the State,” he said. 

“At the time when we most needed support from the State, we were refused it only because I was not married to my partner of almost 20 years before she died.

It is a huge relief to know that no one else in a similar situation will have to endure the same discrimination.

The court ruled that the Oireachtas will now have to bring in legislation to give effect to the decision. It is not yet clear what this will mean in practice or if partners previously refused access to a pension will now receive it.

The O’Meara family was represented by Flac (Free Legal Advice Centres).

Welcoming the ruling, a spokesperson for Flac said the judgment “extends the principle of equality in the context of a social welfare payment, recognising that a non-marital family fulfils the same social function as a marital family and experiences the same loss when a parent dies”.

A spokesperson for the Department of Social Protection said the Government “notes the decision of the Supreme Court in relation to access to the Widow’s, Widower’s and Surviving Civil Partner’s Contributory Pension in respect of surviving cohabitants and their children”.

“The Supreme Court judgment notes that in order to resolve the issue raised a legislative amendment is required,” they added.

“The Minister for Social Protection and the Attorney General are now considering the judgment, including the legislative changes required to respond to this decision. This will be done with all expediency.”

‘God, is that going to be me?’

Marc Cruise, whose partner Bridget O’Shea died from bowel cancer in 2022, was among those eagerly following the O’Meara case after hearing an interview with Johnny.

“I heard him on the radio a few years ago. My partner was going through cancer treatment at the time so I was thinking, ‘God is that going to be me? Am I going to be in his boots a few years down the line?”

Like Johnny and Michelle, Marc and Bridget were a couple for 20 years and lived together for most of that time.

Speaking to The Journal, Marc said he and Bridget planned to marry but life got in the way, then she became ill.

“I should have married her, I wish I did. But we were kind of just scraping by, you know? Marriage wasn’t top of my list.

She was battling cancer for five years. I have a little boy as well, he was only six months old when she got the diagnosis.

“It was a very tough five years of chemo and operations and this and that, and then things accelerated fast.

“We wanted to get married, we wanted to do something, but my priority was to try to keep her upbeat. We didn’t speak about death, we didn’t speak about the end.”

Legal advice

Even though she was dying, Marc said Bridget was conscious of the fact he might lose out on financial support like the widower’s pension because they weren’t married.

“Marriage was on my mind, you know, at the end. Bridget was keen for it to happen, even though she was in the bed. We spoke about it with people in the hospital in Tralee, there was talk about chaplains coming in, but it wasn’t the time or place.

Bridget was aware of the situation – that I was potentially going to be left without access to the widower’s pension – part of the reason she wanted to get married was for my sake, but it just was not feasible.

“My priority was getting through this, getting my son through this.”

Marc didn’t apply for the widower’s pension when Bridget died as he assumed he wouldn’t get it because they never married.

On foot of yesterday’s ruling, he hopes people like him may also be granted access to the payments. He is now seeking legal advice about his entitlements.

Marc said that extra money coming in would help him and his son, Daniel, who will be eight in March.

It’s not the be all and end all, but I was reading Johnny O’Meara’s case and thinking ‘God, that’s me’, I don’t see what the difference is there.

“Every little helps. I’m a Dub living down in Kenmare, I’ve no immediate family nearby, Bridget was from Cork and had no family in this area either.”

Bridget died less than two years ago when she was 45 years old. Marc said he is still coming to terms with the loss.

“The first year afterwards my full focus was on Daniel, you know, getting him through it. I might have neglected myself a little bit, things might have been catching up with me.

“It will only be two years in April since she passed away. I don’t know if I’ve come to terms with it, to tell you the truth, because it’s go go go with a child. I don’t really have a lot of time to be pondering.”

Speaking about Daniel, who was only six when his mother died, Marc said: “I’m very proud of him, he’s doing good.”

Six children under the age of 11

Una Dunphy is also seeking legal advice about her family’s entitlements.

She applied for the widow’s pension in 2009 when her partner Nicky O’Connor died in an accident. He was in intensive care for six weeks before he passed away at age 41.

UpscaleImage_1 20240123 Una Dunphy and her late partner Nicky Una Dunphy Una Dunphy

The couple were together for 13 years. At the time of Nicky’s death, they had six young children ranging in age from 11 to just a few months old.

Speaking to The Journal, Una recalled:

You just go into survival mode, I remember it well. Our youngest, she was only four months old. So I was still on maternity leave.

Losing her partner while trying to raise six children was incredibly difficult but Una initially believed she would receive the widow’s pension.

“You’re in a panic, kind of a primitive mode of survival, when you hit things like that. You just think, ‘Okay, I’m sorted on that level’ (in terms of getting the pension).”

However, her claim was rejected because she and Nicky never married.

“It would have made such a difference to my situation, if I had got that money. I was paying out more than €300 a week for childcare alone while working full time.

“Other things happen in life that mean you’re not there for your kids. And I look back now and know it didn’t have to be that way.

“That’s what makes me so angry today. I’m delighted [for the O'Meara family], don’t get me wrong.

“But it does make me sit back and go, even if they give you all the money now that they should have given you over the 15 years, it doesn’t give you back the time.”

Una said she would have taken legal action years ago if she had the time and money, but it just wasn’t an option for her.

“I was gullible, I’d say, back then. I’ve been involved in politics and I’ve been involved in lots of trade union negotiations since then. I wouldn’t approach things in the same manner anymore, I’d be much more gung ho.

“And I still think to myself ‘why didn’t I take a case?’, but how can you when you’re broke? You look at the judiciary and you go ‘Jesus Christ, how can I possibly go through that?’”

Una, who lives in Waterford, is an activist and has worked as a trade union representative. She also ran as a People Before Profit candidate in previous elections, but has ruled out doing so in a future election.

Una said she is grateful to Johnny O’Meara for taking the case, noting the amount of families yesterday’s ruling could affect.

“Anyone who was refused [a pension] was discriminated against on the basis of their marriage, or lack of having a wedding or a marriage.

“So what I’d like to see happening now is that there’s a discussion around what a family is and the fact you cannot judge somebody as not being a family because they’re not married.

“It’s about the children as well. There was a whole range of payments I wasn’t entitled to because of [being unmarried], and it would have made such a difference. I could have worked part time, it would have been so different for our family.”

WhatsApp Image 2024-01-22 at 16.34.08 Una and her late partner Nicky Una Dunphy Una Dunphy

Una said that any family who didn’t receive social welfare payments because the parents were unmarried should get backdated payments. However, for cost-saving reasons, she is not sure the Government will commit to this.

“I would like to see everybody who was discriminated against in this manner being sorted out.

“If a Supreme Court outcome is that it was discrimination, how can you put a timeline on discrimination? It was certainly discriminatory in 2009 and it’s the same thing now.”

People encouraged to apply for pensions

Commenting on yesterday’s ruling, Sinéad Lucey, Flac Managing Solicitor, stated: “This is the first judgment of the Irish Supreme Court which has found that legislation which distinguishes between marital and non-marital families cannot be justified and is contrary to the constitutional guarantee of equality.

“The judgment underlines that all children are equal irrespective of their parents’ marital status. Mr O’Meara and his family were hugely brave in taking this important case which will have a significant positive impact for other families in similar situations.

“I would encourage anyone in such a situation and who has dependent children to seek advice and to apply for a survivor’s pension now – so as to preserve any ongoing entitlement which they may have as a result of [yesterday's] decision.

“Surviving partners without dependent children may have to wait until the introduction of amending legislation to establish whether they will be entitled to the payment.”

Eilis Barry, Flac CEO, added that this “historic judgment affirms the equality of all children and parents before the law”.

“It requires the Government to re-examine the legislation concerning entitlement to survivors’ pensions. Flac would encourage them to take an inclusive approach to this process and to engage with relevant organisations such as Treoir to address the gaps in the existing survivor’s pension scheme.”

Barry noted the decision of the Chief Justice also confirms that the constitutional protection of the family under Article 41 is confined to the marital family.

“[That] decision makes clear that legislation will be needed to give effect to any new constitutional provisions in the first instance in areas such as social welfare, tax, succession and in the definition of ‘durable relationships’.”

In relation to the referendums happening in March, Barry said Flac has “repeatedly called for the publication of draft legislation outlining the changes that the proposed ‘family’ amendment would give rise to”.

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