The Supreme Court ruling that John O’Meara is entitled to a widower’s pension in respect of his unmarried partner of 20 years Michelle Batey, with whom he had three children, is to be welcomed. It chimes with contemporary societal values and has the additional attraction of making common sense.
The route by which the Supreme Court arrived at its majority decision does merit scrutiny and has a read across to the coming referendum on article 41 of the Constitution, which sets out the place of families.
The wording of the amendment – which will extend the definition of family beyond those founded on marriage to include ones founded on a durable relationship – is expected to be voted through the Seanad this week and polling day is set for March 8th.
Put simply, in coming to its decision the court majority of five judges sidestepped the vexed issue of whether the O’Mearas were a family as far as Article 41 was concerned. The majority – five out of seven judges – concluded that John O’Meara was entitled to his widower’s pension because of another provision of the Constitution: the right to equal treatment under the law.
The value of age: ‘Arts have often been seen to be a luxury’
The Garden Room at The Merrion Hotel review: Luxurious secret terrace in the heart of Georgian Dublin is perfect for a special meal
Hannah Daly: Why net-zero does not go far enough
Co-discoverer of nuclear fission Lise Meitner unfairly overlooked by Nobel Prize committee
The two-judge minority took the view that the O’Mearas were a family under Article 41 and that John O’Meara could therefore avail of it to claim his pension. Their view has no legal effect.
There is nothing particularly novel in the way the Supreme Court squared the circle, according to legal academics. It is a variation of a constitutional work-around that has been employed in various guises since the sixties when the court affirmed the definition of a family as one based on marriage. Nonetheless, it is encouraging to see the court make use of the equality clause.
The reality is that the referendum will go ahead next month, and the Government’s amendment may be passed, albeit with a low turnout
The Government has and will argue that the expanded definition of the family set out in its amendment will bring an end to legal gymnastics and make it clear that families such as the O’Mearas are just that, families, before the law.
The counter argument is that the equality provisions relied upon by the majority provide sufficient safeguards – and that the whole concept of enshrining the nature and role of the family unit in the Constitution is anachronistic and, as the O’Meara case has shown, problematic. Several potential difficulties with the new definition have already been identified.
There are a variety of other views but the reality is that the referendum will go ahead next month, and the Government’s amendment may be passed, albeit with a low turnout.
The robustness of the new definition would then not really be established until a constitutional test case –possibly along the lines already suggested – is taken. At that juncture it may be that another option – removing article 41 in its entirety – might emerge as having been a wiser course.