High Court declares civil service pension scheme discriminatory against qualified cohabitants under Article 40.1.

THE HIGH COURT JUDICIAL REVIEW Record No. 2024/1393 JR [2026] IEHC 19 BETWEEN:

FREDDIE JONES

Applicant -AND-

MINISTER FOR PUBLIC EXPENDITURE, NATIONAL DEVELOPMENT PLAN DELIVERY, AND REFORM, IRELAND, AND THE ATTORNEY GENERAL

Respondents

THE IRISH HUMAN RIGHTS AND EQUALITY COMMISSION

Notice Party

Judgment of Mr Justice Cian Ferriter delivered 19th January 2026

Introduction

1. The applicant’s case in these proceedings is that a civil service occupational pension scheme of which his late partner was a member is incompatible with the equality provisions of article 40.1 of the Constitution in so far as it failed to extend to him the surviving spouse pension benefit of the scheme.

Material Facts

2. The applicant was the life partner of the late James Kingston, a highly respected lawyer and senior civil servant. They lived together in an intimate, committed relationship between 1998 and 2022. At the time of his death in April 2022, Mr Kingston was a civil servant with 27 years’ service.

3. The applicant suffers from severe adult-onset epilepsy and must take a large amount of medication to control his symptoms including seizures which can be severe. His prognosis is stable but life-long. He is in receipt of disability allowance and as a result of this disability was dependent on the late Mr Kingston, both financially and in respect of support and care. He now lives alone.

4. The couple had discussed marraige and, in the period leading up to his tragic death, Mr Kingston had specifically raised the issue. The applicant however considered that they should wait, having regard to Mr Kingston’s mental state in that period.

5. Following the death of Mr Kingston, the applicant made an application to the Circuit Court under Part 15 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010 (“the 2010 Act”) pursuant to which he was declared to be a “qualified cohabitant” within the meaning of s.172 of that Act by Court order dated 24 January 2023. In broad terms, a qualified cohabitant is a person who is not married or in a formal civil partnership but who is in an enduring, intimate and committed relationhip with a partner (of either sex) and living with that partner.

6. Mr Kingston was at all times since joining the civil service in 1995 an ‘Established Civil Servant’ within the meaning of section 1 of the Supernnuation and Pensions Act, 1976 (“the 1976 Act”) and the Superannuation Act 1956 being a civil servant in respect of whom a superannuation allowance may be granted. As such he was a member of the the Civil Service Spouses’ and Children’s Contributory Pension Scheme (the “Scheme”). He had been required to pay, and did pay, contributions to the Scheme in the course of his employment.

7. Following the making of the Circuit Court order declaring the applicant to be a qualified cohabitant, the applicant applied for the benefits provided to the surviving spouses of deceased civil servants under the Scheme. As we shall come to, while the Scheme makes provision for the payment of a spouse’s pension to the spouses and civil partners of deceased members of the Scheme, it does not in its terms make provision for the payment of such a pension to unmarried life partners or qualified cohabitants such as the applicant. As a result, when the applicant initially applied for the payment of the spouse’s pension under the Scheme in April 2023, his application was refused by letter of 18 May 2023 on the basis that such pensions were at present payable only to a spouse or civil partner.

8. On 22 January 2024, the Supreme Court delivered its decision in O’Meara v Minister for Social Protection [2024] IESC 1, [2024] 1 ILRM 437, where it considered a provision in the Social Welfare Consolidation Act, 2005 as amended (“the 2005 Act”)

which provided for the payment of a Widowers’ Contributory Pension (“WCP”) upon the death of a spouse/civil partner but not to a surviving cohabitant who had lived in a committed and intimate relationship with the deceased. The Supreme Court held that the relevant provision was incompatible with the equality provisions of article 40.1 of the Constitution in so far as Mr O’Meara as a parent was denied WCP following the death of his partner (the mother of their three dependent children).

9. In the applicant's view, the scheme found to be unconstitutional in O’Meara shared core similarities with the terms of the Scheme of which the late Mr Kingston was a member.

In particular he relied on the fact that the Supreme Court majority found that the relevant provision in the 2005 Act impermissibly recognised marriage and cohabitation as similar but only to preclude payment in the event of subsequent cohabitation which is similar to the terms of the Scheme here; and also on the fact that in his view both schemes addressed the same particular need, namely the financial loss experienced by a spouse or life partner on the loss of their partner. Accordingly, the applicant's solicitor wrote to the Minister on 8 July 2024 referring to the decision in O’Meara and calling on the Minister to confirm that the applicant would become entitled to payment of a spouses’ pension under the Scheme.

10. After a further exchange of correspondence, the Minister’s private secretary wrote to the applicant on 11 September 2024 stating that:

"In reviewing the Supreme Court judgment in the case of John O'Meara and others v The Minister for Social Protection and others [2024] IESC 1 it is noted that survivor benefits in the Public Service, whether given effect within the relevant pension scheme or through a separate scheme such as S&C [Spouses’ and Children’s] schemes, are occupational pension provisions. The [WCP] differs from those in being a social insurance benefit that is available to all who have paid the relevant social insurance contributions, and is distinct from occupational pension benefits."

11. The letter concluded

“Accordingly, no decision has been taken to change the terms of the [Scheme] to allow receipt of the spousal pension by a person who has not been married to or in civil partnership with the pension scheme member.”

12. That decision is sought to be quashed in these proceedings.

The Scheme

13. It is necessary to set out the relevant provisions of the Scheme and its evolution. The Scheme’s provisions are found in a mixture of statutory instruments and Ministerial circulars.

14. There is no consolidated legal version of the Scheme, as such. The staff handbook of 2006 headed “Superannuation Handbook and Guidance Notes Established Civil Service Scheme Text last updated: December 2006” (“the 2006 Handbook”) seeks to accurately explain the key terms of the Scheme as at December 2006 but sensibly stresses that the handbook is not a legal interpretation of the existing superannuation provisions of established civil servants. It is stated in the handbook that the rules of the Scheme as set out in the relevant statutes, regulations and other official documents should be consulted for the definitive position.

15. The Scheme was established by Ministerial Circular in 1968. As is explained in Circular 12/68, the Scheme was adopted following acceptance by the Minister of agreed recommendations which were made by the General Council of the Civil Service following engagement under the Civil Service’s Conciliation and Arbitration scheme.

16. The Scheme was put on a more formal footing through secondary legislation in the Civil Service Widows and Children's Contributory Pension Scheme SI 132 of 1977 (“the 1977 SI”) which was established in exercise of powers conferred on the Minister by s. 2 of the 1976 Act. At this point in time, the Scheme only applied to male established Civil Servants; thus the focus on “widows” and children.

17. The scope of the Scheme was amended and expanded by statutory instrument in 1979 (SI 177 of 1979) to extend benefits to stepchildren.

18. The Scheme was amended and expanded again in 1981 by SI 56 of 1981 to admit female Civil Servants as members of the Scheme. Circular 10/1981 also addressed female civil servants as members of the Scheme.

19. It appears that a practice emerged from 1984 onwards where the Scheme would be amended by use of Ministerial Circulars which were approved by the Minister and circulated to Civil Servants but without formal amendment to the governing statutory instruments.

20. A significant such amendment occurred in 1984 in Circular 16/1984: Civil Service Spouses and Children's Contributory Pension Scheme, which became known as the “revised scheme” within the Civil Service. It made the Scheme and payment of contributions in respect of it compulsory for all new entrants from 1984 which included the late Mr Kingston. The 1984 circular expanded the range of beneficiaries (to include for example spouses and children of members who married after retirement) and restricted refunds of contributions under the Scheme (such that for example it removed the option to members of the Scheme who remained unmarried throughout their membership to receive a refund of their contributions on retirement).

21. Apart from s.99 of the 2010 Act which had the effect of amending the Scheme by way of deeming provision to extend the Scheme to surviving civil partners (but not cohabitants), further revisions to the Scheme since 1984 have been by way of circular. Circular 6/1995 addressed the coordination of retirement benefits under the Scheme with social insurance benefits. Circular 18/2020 extended the benefits of the Scheme to same sex couples where one of the couple had been a member of the scheme and where the couple had married or entered into civil partnership post-retirement of the member within three years of the enactment of the legislation permitting civil partnership or same sex marriage. This circular gave effect to legal obligations arising from part VIIA of the Pensions Act 1990 which was inserted by the Social Welfare Pensions and Civil Registration Act 2018. Circular 23/2022 clarified the arrangements for operating a limited appeals process for reviewing the exercise of past options not to join the scheme.

22. The core terms of the Scheme impugned in this case are found in the provisions of the 1977 SI (as read in light of subsequent amendments).

23. Article 4 of the 1977 SI provided that all established male civil servants entering from

1 January 1969 would be members. Article 9 provided that members shall pay contributions as provided for in that provision.

24. Article 5 of the 1977 SI provided the entitlement of a “widow” (later expanded to include widowers in 1981 and surviving civil partners in 2010) to the benefits of the Scheme in the following terms:

“5. Subject to the provisions of this Scheme, the Minister shall, on the death of a contributing or former member…grant, in respect of his service –

(a) Where he leaves a widow, a pension to that widow (hereafter in this Scheme referred to as a “widow’s pension”),

(b) Where he had a wife at any time after this Scheme first applied to him (whether or not the marriage continued until his death and whether or not a widow’s pensions is, or can be, granted), a pension for the children of the marriage, and, in the circumstances specified in this Scheme, for other children of his (in this Scheme referred to as a “children’s pension”)… “

25. (The restriction confining benefits to pre-retirement marriages which appeared in article 5(b) was removed when the Scheme was amended by the Revised Scheme in 1984 such that from 1 September 1984 the benefits of the Scheme applied equally to surviving spouses of those who married after retirement.)

26. Importantly, articles 6(1) and (2) of the 1977 SI (which provisions have not been amended save for extension to widowers in 1981 and surviving civil partners by virtue of the 2000 Act) provide:

"(1) A widow’s pension shall not be granted or paid under this scheme–

(a) if the widow was at the time of the death of the member cohabiting with a man other than the deceased as man and wife, or

(b) in respect of any time after the said death when the widow is remarried or is so cohabiting with any man"

(2) Notwithstanding paragraph (1) of this Article, where,

(a) a pension under the scheme is not granted or ceases under the said paragraph (1) and

(b) at a subsequent date to the date of the marriage or cohabitation by reason of which the pension was withheld or ceased the Minister is satisfied that the marriage or cohabitation has come to an end, or that there are compassionate grounds for the payment of pension, he may, if he thinks fit, grant or regrant as may be appropriate the pension as from,

(i) in case the marriage or cohabitation has come to an end, the date on which the marriage or cohabitation ended,

(ii) in any other case, a date not earlier than the date on which the relevant application in receipt is received by the Minister."

27. Equally, the definition of “child” for the purposes of the Scheme contained in Article 3 of the 1977 SI excludes children who are “married or cohabitating with another as man and wife”.

28. Articles 5 and 6 of the 1977 SI as amended are central to the applicant’s constitutional challenge.

Other Relevant Statutory provisions

The Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010

29. Before same sex couples could constitutionally marry, the 2010 Act introduced civil partnership to allow such couples elect for a legal status that carried many (though not all) of the benefits and obligations of marital status. No new civil partnerships could be entered following the introduction of same sex marriage into the Constitution as a result of the 34th constitutional amendment, which was ratified in a referendum in 2015, and the passing of the Marriage Act, 2015.

30. Crowley and Joyce, Family Law (second edition, 2023) state, at para 2-89, that "In enacting the 2010 Act, the legislature sought to equalise the treatment of parties to a civil partnership with the position of married couples, insofar as was constitutionally permissible, to a large extent providing the same or very similar remedies upon the breakdown and dissolution of their relationship".

31. Accordingly, the 2010 Act makes detailed provision for shared home protection, maintenance and succession in relation to civil partners. The 2010 Act also contains provisions requiring proper provision to be made for civil partners (on the dissolution of the civil partnership. (Later legislation – the Children and Family Relationships Act, 2015 – required provision to be made for dependent children of civil partnerships).

32. Section 99 of the 2010 Act provided “that a benefit under a pension scheme that is provided for the spouse of a person is deemed to provide equally for the civil partner of a person”.

33. The 2010 Act also sought to give certain legal protections and rights to couples - whether same sex or heterosexual - who were living together in long term relationships but who did not elect for marriage or civil partnership.

34. Part 15 of the 2010 Act is headed “Cohabitants” and contains provisions, in s.172, defining ‘cohabitant’ and ‘qualified cohabitant’.

35. Section 172 provides:

“172. – (1) For the purposes of this Part, a cohabitant is one of 2 adults (whether of the same or the opposite sex) who live together as a couple in an intimate and committed relationship and who are not relared to each other within the prohibited degrees of relationship or married to each other or civil partners of each other.

(2) In determining whether or not 2 adults are cohabitants, the court shall take into account all the circumstances of the relationship and in particular shall have regard to the following:

(a) the duration of the relationship;

(b) the basis on which the couple live together;

(c) the degree of financial dependence of either adult on the other and any agreements in respect of their finances;

(d) the degree and nature of any financial arrangments between the adults and including any joint purchase of an estate or interest in land or joint acquisition of personal property;

(e) whether there are any one or more dependant children;

(f) whether one of the adults cares for and supports the children of the other; and

(g) the degree to which the adults present themselves to others as a couple.

(3) For the avoidance of doubt a relationship does not cease to be an intimate relationship for the purposes of this section merely because it is no longer sexual in nature.

….

(5) For the purposes of this Part, a qualified cohabitant means an adult who was in a relationship of cohabitation with another adult and who, immediately before the time that that relationship ended, whether through death or otherwise, was living with the other adult as a couple for a period –

(a) of 2 years or more, in the case where they are the parents of one or more dependent children, and

(b) of 5 years or more, in any other case.

(6) Notwhithstanding subsection (5), an adult who would otherwise be a qualified cohabitant is not a qualified cohabitant if

(a) one or both of the adults is or was, at any time during the relationship concerned, an adult who was married to someone else, and

(b) at the time the relationship concerned ends, each adult who is or was married has not lived apart from his or her spouse for a period or periods of at least 4 years during the previous 5 years.”

36. As Crowley and Joyce note, at para 2-138:- "As distinct from the civil partnership regime, and indeed marriage, the rights and responsibilities arising for cohabitants are automatically conferred without a formal ceremony or registration; a cohabiting couple does not expressly elect to be governed by this new statutory framework. However, the rights arising are much less extensive for cohabitants as those attaching to a married couple or to civil partners".

37. One area where rights are extended to qualified cohabitants in the event of death of their partner or termination of the relationship is in respect of qualified cohabitants who are or were financially dependent on their partner as set out in s.173 of the 2010 Act. A qualified cohabitant who meets the financial dependence test may be entitled to maintenance and certain property adjustment orders including pension adjustment orders. Section 173(2) provides that “if the qualified cohabitant satisfies the court that he or she is financially dependent on the other cohabitant and that the financial dependence arises from the relationship or the ending of the relationship, the court may, if satisfied that it is just and equitable to do so in all the circumstances, make the order concerned”. Section 173(3) then sets out a wide range of matters a court shall have regard to in determining whether or not it is just and equitable to make an order in all the circumstances including “the financial circumstances, needs and obligations of each qualified cohabitant existing as at the date of the application or which are likely to arise in the future.”

38. Crowley and Joyce note, at para 2-139, that:- "As with married couples, the more extensive and detailed rights arise upon the breakdown of the relationship, or on the death of one of the cohabitants, with the State preferring only to intervene where a financially vulnerable party may need to rely upon such statutory rights of entitlement.

A qualified cohabitant can rely upon the right to redress in respect of an economically dependent qualified cohabitant. To successfully apply for relief as a financially dependent qualified cohabitant, the applicant must fulfil the criteria set out in section

173 of the 2010 Act which requires the applicant cohabitant to prove financial dependency on the respondent cohabitant."

Pensions Act 1990

39. Part VII of the Pensions Act 1990 (as amended) (“the 1990 Act”) mandates ‘Equal Treatment in Occupational Benefit Schemes’. Civil servants are included in the definition of employees covered by the protections of the 1990 Act. Section 69 of the 1990 Act provides that every scheme shall comply with the principle of equal pension treatment, which section 70 defines as a prohibition on discrimination on any of the proscribed grounds which include marital or civil status. It further confirms that the equal treatment principle applies in relation to members’ dependants.

40. Sections 71 to 74 provide for ‘savings’ in respect of several of the proscribed grounds which disapply the protections of the Act in specified instances. In this regard, section 72(2) and (3) as enacted provided as follows:

“(2) it shall not constitute a breach of the principles of equal pension treatment on the marital or family status ground for a scheme to provide more favourable occupational benefits in respect of any person in respect of whom, under the rules of the scheme, a benefit is payable on the death of the member, provided that this does not result in a breach of the said principle on the gender ground.

(3) It shall not constitute a breach of the principle of equal pension treatment on the marital status or sexual orientation ground to provide more favourable occupational benefits to a deceased member’s widow or widower provided that it does not result in a breach of the said principle on the gender ground.”

Section 72 was amended by s.100 of the 2010 Act to extent these savings to civil partners.

The applicant’s claims

41. Among the relief sought by the applicant in these proceedings is an order of certiorari quashing the Minister’s decision to refuse the benefits of the Scheme to the applicant.

42. The applicant also seeks a declaration that the Scheme insofar as it excludes the applicant is inconsistent with the Constitution.

43. While the applicant sought other reliefs in his statement of grounds, including reliefs under the ECHR and the Charter of Fundamental Rights of the EU, it was clarified at the hearing that he was resting his case on Article 40.1 of the Constitution.

44. The applicant had also sought declarations of unconstitutionality in relation to s. 72 of the Pensions Act 1990 as amended and s. 99 of the 2010 Act but these claims were not pursued at the hearing.

45. While a further declaration had been sought that s. 2 of the 1976 Act was unconstitutional insofar as it was found to permit the Minister to provide for a scheme such as the one at issue which excluded persons in the position of the applicant from the benefits of the scheme, while bestowing those benefits on others in a like situation, it was accepted at the hearing that s. 2 of 1976 Act was simply an enabling provision and that the Minister would have been acting ultra vires in the event that he introduced a scheme which was in breach of Article 40.1 of the Constitution.

Article 40.1 – applicable principles

46. Article 40.1 of the Constitution provides that “All citizens shall, as human persons, be held equal before the law. This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”

47. In MD (a minor) v. Ireland [2012] 1 IR 697, at 714, Denham C.J. held that equality is “among the highest and noblest aspirations included in the Constitution of every modern state”, and the principle of equal treatment of all human persons is “implicit in the free and democratic nature of the State” and “permeates the Constitution”.

48. The principles governing the application of article 40.1 are well-established and were recently re-stated in the judgment of O’Malley J., for the Supreme Court, in Donnelly v. Minister for Social Protection [2023] 2 IR 415 (“Donnelly”). These principles have been affirmed in subsequent judgments of the Supreme Court: see Heneghan v. The Minister for Housing, Planning and Local Government [2023] 3 IR 419 (per Murray J., para 124), O’Meara (per O’Donnell C.J. [2024] 1 ILRM 437, paras 20 and 21); and B.M. and J.M. v. Chief Appeals Officer and Others [2024] IESC 51 (per Collins J. para 28).

49. In summary, the principles in Donnelly are as follows (paragraph numbers are to the paragraph numbers in the Irish Reports report of the judgment of O’Malley J.):

(i) Article 40.1 provides protection against discrimination that is based on “arbitrary, capricious or irrational considerations”: para 191(i).

(ii) The statutory classification in the legislation “must be for a legitimate legislative purpose, and it will not be legitimate if it is arbitrary, capricious or irrational”; furthermore, it must be “relevant to the legislative purpose, and it will not be relevant if it is incapable of supporting that purpose”: para 192.

(iii) the burden of proof rests upon the party challenging the constitutionality of a law: para 191(ii).

(iv) In assessing whether a party has discharged that burden, the court will have regard to the presumption of constitutionality: para 191(iii).

(v) in assessing whether a provision offends article 40.1, the level of scrutiny to be applied by the court may vary depending on a number of factors. On the one hand, the Court will have regard to the constitutional separation of powers and will, in particular, afford deference to the Oireachtas in relation to legislation dealing with matters of social, fiscal and moral policy: para 191(iv). On the other hand, where the discrimination is based upon matters that can be said to be intrinsic to the human sense of self, or where it particularly affects members of a group that is vulnerable to prejudice and stereotyping, the Court will assess the legislation with particularly close scrutiny: para 191(v).

(vi) in some cases, the objectives of a legislative measure, and “its rationality (or irrationality) and justification (or lack of justification)”, may be apparent on its face, while in other cases it may be necessary to adduce evidence to demonstrate the impact of the provision: para 191(vi).

50. Summarising the position in Donnelly, O’Malley J. concluded that a challenge on the basis of Article 40.1 “can only succeed if the legislative exclusion is grounded upon some constitutionally illegitimate consideration, and thus draws an irrational distinction resulting in some people being treated as inferior for no justifiable reason”:

para 195. This was approved by O’Donnell CJ in O’Meara, at para 25.

51. Referring to Donnelly in his judgment in O’Meara (at para 21), O’Donnell C.J.

described the question as being whether the differentiation challenged is “irrational, arbitrary, capricious or not reasonably capable, when objectively viewed in the light of the social function involved, of supporting the selection or classification complained of”.

52. Importantly, as O’Malley J. noted in Donnelly (at para 195):

“The Constitution does not permit the court to determine that the plaintiff should be included simply because a more inclusive policy, assimilating more people sharing some relevant characteristic into the class, would be ‘fairer’.”

O’Meara

53. As already touched upon, in O’Meara the Supreme Court found that s.124 of the Social Welfare Consolidation Act 2005 was unconstitutional insofar as it excluded the applicant in his capacity as a cohabiting parent of three dependent children from the ambit of the Widower’s Contributory Pension (WCP). I will come to the detailed reasoning of the Supreme Court majority judgment in O’Meara in due course, but given its centrality to the applicant's case, it is useful to briefly summarise at this point what was at issue in O’Meara and the Supreme Court majority’s conclusions.

54. Mr O’Meara had a long-term partner for almost 20 years. She died following an illness in 2021. It appears that Mr O'Meara's late partner had not wished to get married owing to the negative experience of her own parents’ marriage and while she and Mr O'Meara had discussed marriage when she became seriously ill, she unfortunately died before that could happen. The couple had three children from their relationship. Following his partner's death, Mr O'Meara applied to the Minister for Social Protection for the payment of a WCP in respect of himself and his children. Both Mr O'Meara and his late partner had made PRSI contributions. The WCP was a pension paid in accordance with Chapter

18 of Part 2 of 2005 Act, under which a pension was payable to the surviving spouse or civil partner on the death of the other spouse or civil partner. The WCP was provided for by s. 124(1) of the 2005 Act as amended. Section 124(2) provided that “a pension shall not be payable to a widow or widower or surviving civil partner for any period after his or her marriage or remarriage, or his or her entry into a civil partnership or a new civil partnership”. Section 124(3) disqualified a widow, widower or surviving civil partner from receiving a pension "if and so long as he/she is a cohabitant". “Cohabitant”

was defined as meaning “a cohabitant within the meaning of section 172(1)” of the 2010 Act.

55. The pension was increased in respect of each dependent child. Mr O’Meara was refused his application for WCP on the basis that he was not a surviving spouse or civil partner.

Mr O’Meara challenged the refusal to grant him WCP on the grounds that the statutory provision discriminated against him in breach of article 40.1 notwithstanding that he was in the same position as surviving spouses or civil partners for the purposes of the need being addressed by the benefit namely to provide financial support to the surviving partner on the death of the other partner.

56. In holding that the provision was incompatible with article 40.1, O’Donnell C.J. for the majority of the Supreme Court relied on a range of factors including that bereavement and the impact of the death of a partner, both emotional and financial, was the same whether the survivor was married or not - the same need for support arose in both cases (para 30); the fact that the WCP was a contributory benefit with Mr O'Meara (and his partner) making the same contributions in PRSI as a widower obtaining WCP and suffering the same emotional and financial loss without receiving the same benefit (para 30); the fact that the payment was increased where there were dependent children, thus bringing into play the constitutional rights of children, which are the same irrespective of the marital status of the parents (paras 31 and 32); the fact (“particularly significantly”)

that the differentiation was not even made on the basis of present marital status; a divorced spouse could claim even where no longer living with the former spouse at the time of death (para 33). The Chief Justice also placed emphasis on the fact that the impugned provision recognised marriage and cohabitation as similar but only in a negative way i.e. to preclude payment to a widow or widower in the event of subsequent cohabitation (para 34). In this regard the need addressed by the benefit was taken to be met in the event of remarriage or subsequent cohabitation. As the Chief Justice summarised "The act recognises that an unmarried partner supplies the same benefits to a partner and children as a married partner does for the purposes of removing the benefit but does the opposite when granting it" (para 34).

57. The Chief Justice concluded that the distinction made between a surviving spouse with dependent children and the surviving partner of a non-marital relationship with dependent children was arbitrary and capricious and was not reasonably capable when objectively viewed in light of the social function involved of supporting the classification complained of (para 35). He laid emphasis (as is clear from the declaration granted by way of remedy in that case) that the section was unconstitutional in failing to hold Mr O'Meara and his late partner as parents equal before the law (emphasis added).

The Social Welfare (Bereaved Partners Pension and Miscellaneous Provisions) Act 2025 (“the 2025 Act”)

58. Following O’Meara, the Social Welfare Consolidation Act 2005 was amended by the 2025 Act so as to expand the WCP benefit to surviving qualified co-habitants. Section

81 was substituted by a new provision which provides that death benefit shall be payable to the “bereaved partner of a deceased partner”. “Bereaved partner” is then defined in s.123 as “a widow, a widower, a surviving civil partner or a surviving qualified cohabitant” with “deceased partner” defined to mean, in respect of a bereaved partner, “the last deceased spouse, civil partner or qualified cohabitant, as the case may be, of the bereaved partner”. S.123A of the 2025 Act defines qualified cohabitant in like terms to the 2010 Act.

The State’s evidence as to the Scheme

59. Patrick Moran, a principal officer in the Minister's Department, swore an affidavit on behalf of the respondents (“the State”). He explained aspects of the background to the Scheme including the fact that for those who joined the civil service before 2013, periodic scheme contributions are generally paid at a rate of 1.5% of gross salary, deducted at source on a continuous basis. For those who joined after 2013, main scheme and survivor benefit contributions are combined in the overall contribution rate for the Single Public Service Pension Scheme (“the Single Scheme”). He said that the terms of the Scheme, including the classes or persons in respect of whom benefits are payable and the levels of contribution required are, as with other public sector occupational schemes, determined following engagement with employee representatives. He noted that public sector schemes are, like occupational pension schemes in non-government bodies, generally the product of detailed and negotiated industrial relations processes.

60. Mr. Moran said on affidavit that a primary focus of policy reform over the last number of decades has been strengthening the financial sustainability of public sector pensions in the face of cost pressures associated with increased longevity and population ageing. Among the more significant such reforms has been the creation of the Single Scheme developed in consultation with employee representatives which came into operation at the start of 2013 following the passing of the Public Service Pensions (Single Scheme and Other Provisions) Act 2012. This introduced a range of measures designed to improve sustainability, including the calculation of pension benefits with reference to career average salaries rather than final salary and indexing pension payments to inflation rather than public service pay agreements. He made reference to the pre-existing eligibility rules for survivor benefits being retained rather than expanded within the Single Scheme as any expansion of benefits would offset some of the savings the Single Scheme is designed to achieve.

61. Mr Moran said that Pensions Authority data indicated that as of March 2025 there are 98 separate pension schemes in existence across the public sector with a combined total of over 450,000 active members. He said that, in general terms, the rules of these schemes are broadly similar although there are some sectoral variations and rule changes in one scheme do not automatically carry across others. He averred as to his belief that eligibility rules for survivor benefits are generally similar in schemes for staff of the civil service, defence forces, gardai, education, health and local authority services. Data from 2025 indicates the total expenditure on spouses’ and children’s schemes in the civil service in respect of spouses and children of civil servants, members of the judiciary and court officers in 2024 was in excess of €50 million.

62. Mr. Moran explained that the Scheme provides financial benefits to spouses and children of deceased civil servants on a group insurance basis whereby member contribution rates take account of the fact that payment of benefits will not arise in respect of all members. The benefits of the Scheme are available currently to all legal spouses and civil partners irrespective of whether the marriage/civil partnership occurred after the civil servant’s retirement and to all “eligible” children including stepchildren of the civil servant, whether adopted, born outside marriage and irrespective of whether the birth or adoption occurred after the civil servant’s retirement.

63. An “eligible” child is (a) a child under the age of 16 or (b) a child under the age of 22 in full-time education or (c) a child under a permanent physical or mental incapacity which began while covered under (a) or (b).

64. Payments to a spouse or civil partner under the Scheme depend on the benefits accrued by the deceased member and generally equate to half of the deceased member’s pension.

65. Payments to children under the Scheme are detached from payment of the spousal pension although the level of payments available to children is impacted by other dependent pensions. Thus, where a spousal pension is in payment, and the number of children is less than four, each child receives one sixth of that pension; where there are four or more children one half of the pension is divided equally amongst the children. In contrast, where a spousal pension is not in payment, if there is one eligible child, that child would receive one third of the pension and if there are two or more children, half of the pension is divided equally between the children. In general, the combined pension payable to the surviving spouse and children will not exceed the deceased member’s occupational pension.

66. In accordance with the terms of the Scheme, upon notification to their pension administrator of any relevant change in circumstances, such as remarriage or cohabitation, payments to any person in receipt of spousal benefit may cease. The obligation is on the beneficiary to inform the administrator of any such change of circumstance. Pension declaration forms put in evidence reflect these matters. It is also the case, as noted, that benefits can be restored in certain circumstances by a decision of the Minister.

Proposed reforms of the Scheme

67. A quarter of a century ago, in November 2000, the Commission on Public Service Pensions produced a comprehensive and detailed report into public sector pensions (“the 2000 Report”). The terms of reference of the Commission were to examine and report on the pension terms of public servants employed in the civil service, defence forces, gardai, education, health and local authority services having regard to inter alia the present and future costs arising under the schemes financed by the exchequer; claims for improvements in existing scheme benefits; changes in the working environment and conditions of employment of public servants since the schemes were introduced and the operational needs of the services concerned. The Commission noted at para 1.12 of its report that securing the long term viability and stability of public service pensions and managing the growth of pension costs were central to the Commission's proposed strategy for a new public service pensions framework and underpinned their recommendations as a whole. The 2000 Report runs to almost 600 pages and contains detailed analyses of various aspects of public sector pensions including costing, financing, transparency, and potential changes to scheme terms. The Report also included many detailed and worked-through recommendations for reform.

68. As the applicant contended that some of the content of the 2000 Report is of general relevance to the context of the issues I have to decide, I will summarise the salient parts of that content.

69. Chapter 20 of the 2000 Report deals with dependants’ benefits and in particular the spouses’ and children’s contributory pension schemes. The Commission notes at para.

20.1.1 that such schemes “have proved to be one of the more important developments in public service pensions policy over the last 30 years. Through public service spouses’ and children schemes, it has been possible to provide for the surviving family members of public servants when they die after retirement or while in public service employment. As well as meeting an important social need, the schemes have helped ensure a degree of financial security and peace of mind for individual public servants and for their dependants.”

70. In discussing the role of such schemes, the report notes the rationale behind the original

introduction of the schemes in the 1960’s and 1970’s had been to provide welfare support to widows who would not have had any independent means of support (para.

20.2.4). The Commission notes the argument that developments in labour force composition, where many more married women have independent sources of income and are members of pension schemes in their own right, in addition to expansion of social welfare benefits, arguably meant that the original rationale of such civil service dependants’ pensions have become outdated.

71. The Report considered arguments in favour of retaining the schemes in their present format. The Commission did not see any convincing argument for revising the basic structure of the schemes particularly since they continue to play an important role in protecting those who are financially vulnerable and dependent. In reaching this

conclusion, the Commission noted that it was particularly conscious of the role played by the public service unions in the original introduction and subsequent development of the schemes and of the continuing 1.5% contribution which is being made by public servants towards the cost of the scheme. The Commission recommended the inclusion

of spouses and children schemes in a single public service occupational pension scheme (a recommendation which, as we have seen, was implemented in 2013).

72. The Report notes (at para. 20.3.3) that the revision of the scheme in 1984 to cover postretirement marriages and children born outside of marriage led to additional costs and as a trade-off the contribution refund arrangements were made more restrictive than in the original schemes.

73. The Report in chapter 20.4 considers the arguments for and against an extension of scheme beneficiaries to include non-marital partners.

74. The Commission noted (at para 20.4.4) of the report that revenue rules in relation to occupational pension schemes permitted the payment of a survivor's pension to a cohabiting partner on the basis that the person was wholly or substantially dependent financially on the employee or at the time of the employee's death. The report notes that “in practice the existence of dependency is recognised where two people are sharing a household as financial interdependence is the determining factor, i.e. a second income has been relied upon to maintain a certain standard of living prior to the member’s death”

(emphasis in original).

75. The Commission noted (at para 20.4.6) that in contrast to the position in the public service, a significant number of private sector schemes promise a pension to a spouse or other nominated adult person financially dependent upon the member in the case of death in service.

76. The Commission in its report (para 20.4.8) was apprehensive that the Constitution might require marital discrimination, but nonetheless, recommended expanding the scheme to nominated cohabitants.

77. The Commission concluded:

20.4.8 The Commission is sympathetic to the argument that a spouse’s pension should be payable to the surviving partner of a public servant where the two parties were living together as husband and wife prior to the member’s death, and where financial interdependency can be shown to have existed. A reform of this nature would enable public service schemes to remain reflective of wider social developments and would bring them into line with practice in most occupational pension schemes in the private sector. However, we are conscious of the constitutional obligations of the State. The legislative nature of public service pension schemes requires that they conform to the provisions of the Constitution.

78. The Commission, at para. 20.4.9 of its report, made the following recommendation:

“… that the existing provisions of public service spouses’ and children's schemes should be modified to allow payment of a survivor's pension to a financially dependent partner in circumstances where there is no legal spouse and where a valid nomination has been made. We would suggest that the system of nomination to be introduced on foot of this recommendation should provide for regular review, preferably as part of the annual issue of the statement of pension entitlements… We would envisage that the nomination form would seek details on the nature and extent of the financial dependency and that it would state that documentary evidence of financial dependency would be required should the member pre-decease his or her partner. We consider that the form should also state that a nomination, assuming there was no legal spouse, would not be binding on the scheme administrators, and that a pension would not be paid where there was no valid nomination in place.”

79. As is clear from the terms of this recommendation, it envisaged a valid nomination being made in advance of a member's death, the nature and extent of the financial dependency of the member’s partner would be set out and the trustees would ultimately have a discretion in relation to whether or not such a nominated party would be paid a pension benefit. The Commission did note (at para. 20.4.10) that the approach recommended by them would ensure that, inter alia, the constitutional imperative not to penalise marriage would be respected by continuing to favour the family base and marriage over any other type of arrangement.

80. The Commission also recommended the removal of the provision which required a spouse’s pension to cease on remarriage or cohabitation grounds (at para. 20.5.9).

81. The Report noted (at para. 20.5.6) that this part of the scheme was not actively monitored and depended on pension recipients volunteering the relevant information as to remarriage or subsequent cohabitation. It also noted that many private sector schemes did not provide for cessation of pensions in such circumstances.

82. The Commission noted (at para. 20.5.8) that they cessation of pension on remarriage or cohabitation was in keeping with the traditional view of dependants’ benefits in which the surviving spouse was always assumed to be female and that on remarriage or cohabitation, it was assumed that the new partner would provide for the spouse and her family if any and accordingly that payment of a spouses pension would no longer be necessary. It believed that this conception of dependants’ benefits was no longer valid:

“The modern view of dependants’ benefits is that they are a form of insurance cover to provide for financial interdependency. We believe that continuation of the remarriage/cohabitation condition would be inconsistent with this modern view.”

83. I should say for completeness that the 2006 Handbook notes, at para. 16.31, that

“a joint management union ‘working group on possible changes to public service spouses and children's pension schemes’ is currently (late 2006) examining the feasibility of implementing certain reforms to survivors’ superannuation benefits in the public service which are recommended by the Commission on Public Service Pensions.

[i.e. in the Commission's 2000 Report]. These recommendations include the payment of survivors pensions to financially dependent non-marital partners of public servants through a nomination system, along with the removal of the bar on paying pensions to widows/widowers who remarry or cohabit and an improvement in the position of orphaned children in cases where both parents were members of the same Spouses and Children Scheme. It will be a matter for Government to consider what changes, if any, should be made after the Working Group has submitted its report.”

84. I did not have any evidence as to the ultimate outcome of those recommendations though it is fair to infer from the absence of any subsequent amendments to the Scheme in respect of these matters that the relevant recommendations did not ultimately gain government support.

85. While I have summarised some parts of the 2000 Report as potentially useful context to the issues in this case, the recommendations in the report of course carry no legal weight as such.

The Applicant’s submissions

86. The applicant’s core case is that the provisions of the Scheme which operate to exclude him from an entitlement to a spouses’ pension violate the equality provisions of article

40.1 in precisely the same way that the provisions of the WCP at issue in O'Meara were found by the Supreme Court to be contrary to the principle of equal treatment in article

40.1 in that case. He says that the Scheme treats him less favourbaly than a surviving partner in a comparable situation who was married or in civil partnership and does so solely on the basis of that chosen civil status, which is irrelevant to the event giving rise to the recognised need for support which is the purpose of the Scheme.

87. The applicant says that the fundamental inequality at the heart of the Scheme is identical to that in O’Meara. A telling feature of the irrationality of the exclusion of qualified cohabitants from eligibility is that, just like the WCP , the Scheme recognises marriage and cohabitation as equivalent but only negatively. Whilst denying the benefits of the Scheme to surviving cohabiting partners, the Scheme nonetheless recognises the support provided by cohabitants to each other, when it revokes the benefit of the Scheme where a qualifying person remarries or becomes a cohabitant. Equally, the Minister may “regrant” the benefit if he is satisfied that the second marriage, or later cohabitation, has come to an end. (Indeed, under this Scheme, a child who would otherwise be entitled to the benefit of a pension is also excluded where he/she is cohabiting with “another as man and wife”. ) The Scheme treats marriage and cohabitation as functionally identical when providing for the revocation of the benefit and in making provision for its possible ‘regrant’ upon the cessation of a subsequent cohabitation, but treats cohabitation as different from marriage or civil partnerhsip for the purposes of qualification for the benefit, notwithstanding the clear purposes of the provision – which is identical to that in O’Meara. He submits that the Scheme is currently incompatible with the ratio of the Supreme Court’s decision in O’Meara.

88. Accordingly the applicant submits that, the purpose of the relevant provisions of the Scheme – like the WCP in O’Meara – is to make provision for a payment “in the event of the occurrence of an event giving rise to a recognised need for support”. The fact that it is an occupational pension scheme as opposed to a social welfare benefit does not detract from the fact that the recognised need for support in both cases is the same i.e.

the need to provide for support for survivors of the deceased member of the Scheme who would otherwise have been supported by the member.

89. The applicant submits that, just as in O’Meara, the bereavement and impact of the death of a partner, both emotional and financial, is “in no way different whether the survivor is married or not” (O’Meara, para 30). This is well illustrated by the facts of this case: the applicant is unable to work as a result of a permanent medical condition and, while he has been in receipt of disability allowance, he was financially reliant on his late partner.

It follows that, even though the applicant and his late partner were not married or in a civil partnership, the same need for support arises.

90. As in O’Meara, the applicant’s partner made contributions on a contributory, mandatory basis; he could not opt out of the Scheme. He submits that while a spouse or civil partner would get the benefit of the contributions paid by the deceased partner, a qualified cohabitant who was in a committed relationship of a similar character and suffers the same loss - but who was not married or in a civil partnership - will get no benefit from the contributions mandatorily made.

91. The applicant submits that the fact that the Scheme is an occupational pension scheme as opposed to a social welfare pension scheme is a distinction without a difference. This is not a ‘private’ matter between the Minister and his employees. This is a scheme set up in reliance upon statutory powers through which public funds are expended. The needs addressed are the same - both are concerned with pensions to surviving spouses.

92. The applicant emphasises that the Supreme Court in O'Meara applied its equality analysis to Mr O’Meara both as an individual and a parent. While accepting that the Supreme Court’s order in O’Meara expressed itself in terms of an unconstitutional discrimination against Mr O'Meara as a parent, he submits that the terms of the 2025 Act which do not confine the amendments of the relevant provisions of the 2005 Act to cohabiting parents demonstrate that the Oireachtas understood O'Meara properly as applying to qualified cohabitants irrespective of whether they had children or not.

IHREC’s submissions

93. IHREC was joined as an amicus curiae to the proceedings. In helpful oral and written submissions, IHREC fully supported the applicant’s case. IHREC submitted that, while accepting that there were differences in the factual situation at play in O’Meara and accepting that the fact that Mr. O'Meara was a parent was undoubtedly a factor which was taken into account by the Supreme Court, nonetheless the Scheme here shared with the WCP scheme in O’Meara the same basic architecture (being a mandatory, statutebased, contributory scheme meeting a recognised need on the death of a life partner) and suffered from the same basic design flaws (namely unjustifiably discriminating between persons who had the same emotional and financial needs following the death of their partner and treating married and civil partners as equal with cohabitants for the purposes of excluding a benefit while discriminating between those classes of people when determining who was eligible for the benefit). Fundamentally the Scheme in its patchwork, piecemeal developments can no longer be said to conform to any clear and justifiable principle, similar to the position in O’Meara.

94. IHREC emphasised that the authorities were clear that marital status did not give a blanket immunity from article 40.1 scrutiny.

95. IHREC shared the applicant’s view that the equation of married/civil partners with cohabitants for the purposes of excluding benefits is a fundamentally irrational aspect of the Scheme. It points to the 2000 Report’s recommended reforms as evidencing long recognition that the terms of the Scheme are socially outdated and no longer meet its core purpose.

96. It submitted that the fact that the Scheme was an occupational pension scheme and not a social welfare pension scheme was not a material difference for the purposes of the article 40.1 analysis in circumstances where the relevant question was the rationality of the statutory classification in light of the purpose of the Scheme, the relevant purpose here being provision of a benefit to a surviving partner whose needs were met by the member before his death.

97. IHREC contended that the integration of the Scheme with social welfare pensions in the Single Scheme showed that the Scheme shared similar purposes and social functions as the social welfare survivors pension scheme.

98. It submitted that the scheme as a creation of the Minister pursuant to his statutory powers did not enjoy the same level of presumption of constitutionality as the 2005 Act in O’Meara and was therefore if anything more vulnerable to challenge under article 40.1.

99. The Commission points to paras 50 and 51 of the (minority) judgment of Hogan J. in O’Meara in support of view that qualified cohabitance was also a form of legally recognised relationship that was not materially different in this context to marriage and that s.72 of the 1990 Act was simply a sub-constitutional, legislative saver provision which could not oust the proper application of article 40.1.

The State’s submissions

100. The State in its submissions emphasises that O’Meara arose in a fundamentally different context, being that of a social welfare benefit scheme which sought to address on a universal basis a recognised social need; here the context is one of an occupational pension scheme which is an arrangement between employer and employees which has emerged as a product of detailed and complex negotiations over a lengthy period. Such schemes have negotiated rules in relation to eligible beneficiaries and benefits are only payable in accordance with those rules. There is a crucial element of private control on the part of employer and employee present in the Scheme which is simply absent from generally available social insurance benefits.

101. Funding concerns loom large in the agreed structure of an occupational pension scheme;

employers and employees are entitled to determine appropriate classes of beneficiaries based on the likely funding implications which will have an impact both on the level of contributions to the scheme to be made by employees and the funding obligations on the State as employer. While contributory state pension benefits are funded by way of PRSI contributions to the Social Insurance Fund, occupational public service pension scheme benefits are, generally, in addition to contributions from members, funded by voted Oireachtas monies. The viability of the funding of agreed levels of benefit remains an ever-present concern.

102. All of this points to a fundamental distinction between this scheme and the WCP scheme at issue in O’Meara: this scheme is not addressing a universal social need but is rather concerned with benefits confirmed as a term of employment.

103. The State lays emphasis on the fact that, in contrast to the children of the parents in O’Meara, members of the Scheme and their cohabiting partners can elect to formalise their relationship in law to marriage or civil partnership to ensure that they bring themselves within the benefits available under the Scheme.

104. The State submits that it is perfectly rational for the State in the context of an occupational pension scheme to decide to extend benefits to persons who are in a formal legal relationship with the member (just as the Scheme extends benefits to children with a recognised formal legal status including birth children, adopted children and step children), The jurisprudence has long recognised that marital status is a legitimate basis for conferring benefits which would not be available to non married persons. Equally, the civil partnership status afforded to same sex couples from 2010 to 2015 in a period where such couples were not in a position to lawfully marry, recognises the election of such couples for a formal legal status for the relationship which carries with it both benefits and burdens. This cannot be said of cohabitants and therefore it is perfectly legitimate in determining classes of beneficiary in an occupational pension scheme to discriminate between persons who have elected for married or civil status and those who have not.

105. Drawing the line at benefits for those of a recognised legal status also has the benefit of certainty and transparency.

106. The State points to the fact that the provisions of s.72 Pensions Act 1990 as amended encapsulate a statutory recognition by the Oireachtas that it is legitimate to provide more favourable pension benefits to those of married and civil partnership status.

107. The State emphasises that the applicant’s case must necessarily focus on the eligibility criteria of the Scheme; his case is that he has been rejected for eligibility on a constitutionally improper basis. The fact that the Scheme equates marriage with cohabitation for the purposes of withdrawing a benefit confirmed under the Scheme does not render the eligibility criteria irrational. The Scheme may have different objectives or purposes for different aspects of the scheme and thus, for example, in the context of withdrawing benefits previously conferred by the Scheme, it may be legitimate to have regards to broader cost considerations. The law does not demand perfect coherence in a scheme; different provisions can have differing and sometimes competing objectives.

Thus, the provisions of the Scheme in relation to children’s pensions are such that surviving children of one member may get less by pension benefit than surviving children of other members if they happen to be one of a great number of siblings, even though each child may be said to have the same need; this unequal treatment is a legitimate choice for the Scheme’s drafters to have made.

108. The State cautions in its submissions against projecting a rationale for the Scheme from its exclusion/disentitlement provisions back up to its eligibility provisions: the proper focus should be on the rationality of its eligibility provisions which, it says, are plainly rational.

109. While accepting that the spouses’ pension and children's pension can be characterised in some respects as meeting a need, the State also points out that there are other legitimate objectives of the Scheme such as representing the outcome of achievements gained by employee representatives over the years; generous pension benefits being an attractive part of the overall remuneration package available to a civil servant.

110. The State submits that a proper reading of O’Meara demonstrates that the ratio of that

decision was addressed towards Mr O'Meara’s status as a parent. The crucial difference between the terms of the WCP scheme and the one at issue in this case is that the WCP benefit was intended at least indirectly to provide for support of children of a surviving partner; children were not in a position to choose the martial status of their parents and could not be discriminated against on that basis. A fundamental irrationality of the WCP scheme in O’Meara was that a divorced surviving partner could obtain the benefits even if that partner no longer lived with or supported the children of the divorced marriage; it was difficult to square the rationality of that in circumstances where no benefit was provided to a surviving cohabiting partner who was looking after the children. While accepting that the Supreme Court placed emphasis on the fact that the WCP like the scheme here equated cohabitants with married and civil partners for the purposes of excluding a benefit, it was submitted that it was clear from O'Meara that the Supreme Court relied on an accumulation of factors in arriving at its conclusion that the WCP

scheme was unconstitutional and most of those factors are not present in the Scheme at issue in this case.

111. The State rejected the proposition that the integration of the Scheme with social welfare pensions show that the schemes share similar purposes and social function; it pointed out that private sector schemes can likewise be integrated with social welfare schemes.

112. The State makes the obvious point that the 2000 Report’s recommendations are not legally binding; but says that even on its own terms the recommendation for broadening the spouses’ benefit under the Scheme was for a form of legally recognisable process – a prior nomination of a financially dependent partner - and even then the matter would remain one of Trustee discretion.

Discussion

Can O’Meara be safely applied to the Scheme here?

113. In principle, one needs to be careful in transposing the analysis of a social welfare pension case such as O’Meara to an occupational pension case, even a State-backed one derived from statute such as involving the Scheme here. In contrast to social welfare benefits, State-backed occupational pension schemes arise in an employee-employer context; are an aspect of the employment relationship whereby pension benefits are paid out as a form of deferred remuneration; and represent the outcome of negotiated give and take by employers and employee representatives, including as to the benefits which can be conferred in light of members’ contribution limits (and the constraints of exchequer funding).

114. As s.72 Pensions Act 1990 as amended recognises, it may be perfectly legitimate for employers, including the State, to draw a line between pension benefits which will be conferred through membership of a scheme to married persons and civil partners, on the one hand, and parties who do not enjoy such legal status, on the other.

115. As O’Donnell CJ explained in O’Meara (at para. 18) "While marriage, even in the legal context, tends to be viewed through rose-tinted glasses, the inescapable fact is that marriage is a legal status achieved only when formalities specified by the State are complied with, and which cannot be varied, set aside or dissolved by the parties themselves without seeking and obtaining the permission of the State". The same may equally be said, in this context, of civil partnership status. The circumstances in which marriage and civil partnership may be dissolved are regulated by statute and notably require that proper provision be made for a spouse/civil partner and where applicable children of such a marriage or civil partnership. As observed by the Chief Justice in O’Meara (para. 19) the distinctive characteristic of marriage (and, I might interpose, of civil partnership) “is that it is a legal status freely chosen by the parties with knowledge that it involves a corpus of rights and obligations, burdens and benefits". One of the benefits which might legitimately arise as a result of the assumption of the obligations and burdens of marital or civil status is that of an occupational pension benefit. As the Chief Justice further observed (also at para 19): “It follows, that it is a status which may be rejected by individuals who do not wish to incur the obligations or obtain the benefits, or who simply do not want the State’s involvement in what is an intimate and personal relationship. Some part of the protection and vindication of personal responsibility and autonomy guaranteed by the Constitution involves requiring the State to respect such choices.”

116. Similarly, in his concurring judgment in O’Meara, Hogan J held (at para 43): “The Oireachtas is, of course, entitled – perhaps, in some instances, even obliged – to treat married couples differently. To repeat, marriage is different. It would, after all, make no sense in the light of the constitutional scheme of things to say that cohabitation was no different from marriage, when, for example, Article 41.3.2° expressly provides that a marriage can only be dissolved after two years and only when proper provision is made for the other spouse and any children of that marriage. Marriage and the protection of spouses is woven into the fabric of our law, and not just simply in the areas of tax and social welfare.”

117. Turning to the question of the applicability of the analysis in O’Meara to the Scheme, I accept the State's submission that it is not a legitimate exercise to simply, as it were, “cut and paste” the comparable provisions from the social welfare scheme in issue in

O’Meara, point to a number of overlapping similarities between this case and O'Meara, and reach the inexorable conclusion that the Scheme is incompatible with article 40.1 in the same way that the WCP scheme in O’Meara was found to be incompatible with article 40.1. The reality is that while the two schemes share some common features, there were aspects of the scheme and the context in O'Meara which were markedly different.

The fact that Mr O’Meara as applicant in O'Meara had dependent children was clearly a crucial, if not pivotal, consideration in the Supreme Court's analysis in O’Meara; as noted by O’Donnell CJ (at para 31) “in such circumstances the survivor will have additional costs and expenses associated with maintaining any dependent children. In such circumstances the increased payment is clearly intended to benefit the children even if indirectly. These costs and the loss to the surviving parent and the children arising from the death of the deceased parent do not differ by reference to the marital status of the parents". The Chief Justice also recognised that the Constitution recognises the rights of all children and obligations of their parents irrespective of the status of their parents.

There was no relevant constitutional distinction in that respect between children in a long-standing non-marital unit such as the O’Mearas and those of a comparable family whose parents were married; neither was there any difference in the duties and obligations that parents, married or unmarried, owed to their dependent children.

118. The conclusion of the Chief Justice, at para. 35 of his judgment, significantly rests on the basis that the impugned statutory provision made a distinction which is arbitrary and capricious and which was not reasonably capable when objectively viewed in light of the social function involved of supporting the precise classification challenged and therefore failed to hold them as parents equal before the law (emphasis added).

119. The Chief Justice also regarded as "particularly significant" (para 33) that the differentiation in the WCP scheme in O’Meara was not even made on the basis of present marital status so that a payment could be made to a divorced parent in circumstances where the parents were not married at the time of the death of one party and may have gone their separate ways many years before. In this way, there was not a sufficient basis for treating such parents differently and better than otherwise comparable parents who had never married at all and may have been together at the time of the death of one partner.

120. These considerations do not arise in respect of the Scheme at issue in this case. Under the Scheme, there are separate pension benefits provided to the surviving children (birth, adopted and step) of the deceased member; there is no enhanced benefit to a surviving spouse if there are children involved. Furthermore, the Scheme here does not provide an entitlement to a benefit for a divorced party given that such a party will no longer be a spouse as a matter of law. While it is of course the case that pension benefits accruing to a former spouse in a divorce context might be the subject of provision in the context of a court-ordered divorce, that cannot be said to be comparable to the situation obtaining in O’Meara.

121. Accordingly, while it is the case that there are commonalities between aspects of the scheme in O'Meara (in particular the fact that the contributions are contributory and mandatory and that the impugned provision there recognised marriage and cohabitation as equivalent for preclusion purposes but not for eligibility purposes, aspects of the Scheme which I will return to), I do not think it is safe to proceed on the basis that I can arrive at the same conclusion as the Supreme Court in O'Meara based simply on the fact that there are overlapping features between the respective pension schemes. The context is different, aspect of the terms of the schemes are different, and the status of Mr O'Meara as a parent with dependent children was central to the analysis in that case.

Is the Scheme on its own terms incompatible with Article 40.1?

122. Accepting that occupational pension schemes are different from social welfare benefits, and accepting that it is in principle legitimate to confine benefits under such a scheme to persons who have chosen to accept the burdens and benefits of marital or civil status, and that the analysis in O’Meara cannot be neatly directly transposed to the Scheme, it is still necessary for the court to determine whether the Scheme on its own terms is compatible with article 40.1 of the Constitution.

123. The State properly accepts that a State-backed occupational pension scheme derived from statute is nonetheless not immune from constitutional scrutiny; it must still be compatible with article 40.1. The State further accepts that the fact that it is legitimate to discriminate on the grounds of marriage (or, on its case, marriage and civil status) does not mean that the Scheme is immune from constitutional scrutiny. A Donnelly analysis can be applied to it.

124. I propose therefore to examine the Scheme on its own terms by reference to the principles set out in Donnelly.

125. While the Scheme is governed by a combination of secondary legislation and Ministerial circulars, as the decisions of the Minister in relation to the Scheme involved at least to some degree the distribution of public resources as between certain categories of citizen, I approach the matter on the basis that the presumption of constitutionality applies with force. As the Scheme involves, at least to some degree, expenditure of public monies, and can be said in general terms to engage questions of fiscal policy, a broad margin of appreciation should be afforded to the State in how it formulates the terms of such a scheme.

126. I further approach the matter on the basis that, as there are no other constitutional rights or provisions engaged, this is a “pure equality” claim pursuant to article 40.1 (i.e. not one that engages with some intrinsic aspect of the applicant’s personhood or his membership of a group vulnerable to prejudice and stereotyping) with a necessarily higher bar to be surmounted by the applicant in demonstrating non-compliance with article 40.1.

127. It is also important to emphasise that the onus is on the applicant to prove the noncompliance with article 40.1 complained of and I approach the matter on that basis.

128. It is necessary to focus (per O’Donnell J as he then was in MR v An tArd Chláraitheoir [2014] 3 IR 533 at para 241) very clearly on the context in which the comparison is being made. The claimant and the comparator must be the same for the purposes for which the comparison is made.

129. On the question of justification of the statutory differentiation, the origin of the test in Donnelly can be traced to the formulation of Henchy J in Dillane v Ireland [1980] ILRM

167 at 169 as follows:

“When the State, whether directly by statute or immediately through the exercise of a delegated power of subordinate legislation, makes a discrimination in favour of, or against, a person or a category of persons, on the express or implied ground of a difference of social function, the courts will not condemn such discrimination as being in breach of Article 40.1 if it is not arbitrary, capricious, or otherwise not reasonably

capable, when objectively viewed in the light of the social function involved, of supporting the selection or classification complained of.”

130. This was the test applied by Murray J in the Court of Appeal in Donnelly which was approved as being the correct test by O’Malley J in the Supreme Court in Donnelly (at para 200), which I shall come to shortly.

131. As O’Malley J stated at para 192 of Donnelly: “The statutory classification must be for a legitimate legislative purpose, and it will not be legitimate if it is arbitrary, capricious or irrational. Further the classification must be relevant to the legislative purpose and it will not be relevant if it is incapable of supporting that purpose.”

132. In the context of a “pure” equality claim, O’Malley J noted (at para 195) that the “challenge can only succeed if the legislative exclusion is grounded upon some constitutionally illegitimate consideration and thus draws an irrational distinction resulting in some people being treated as inferior for no justifiable reason. The Constitution does not permit the court to determine that the plaintiff should be included simply because a more inclusive policy, assimilating more people sharing some relevant characteristic into the class, would be ‘fairer.’”

133. At paras 200 and 201 O’Malley J held in material part that:

“200. I consider that the Court of Appeal was correct in holding that the principal issue in the case is, as discussed by Henchy J. in Dillane, the rationality of the legislative differentiation. The first question is whether the legislation makes a discrimination in favour of, or against, a person or category of persons, on the express or implied ground of a difference in social function. If so, does the discrimination have a legitimate purpose, relevant to the objective of the legislation? Is it arbitrary, or capricious, or otherwise not reasonably capable, when objectively viewed in the light of the social function involved, of supporting the selection or classification complained of? The answer to this latter question will of course entail considerations of proportionality, insofar as proportionality may be seen as an intrinsic aspect of rationality — the distinction drawn may, on its face, be rational, but it may be that in a particular case there is no rational relationship between that distinction and the measure enacted….

201. In identifying the objective of the legislation, I would not necessarily agree with the appellant's submission to the effect that one looks primarily at the exclusion provision, with the objective of the overall scheme being examined only insofar as it provides the context. It seems to me that the court must firstly consider the totality of the scheme, in order to assess the rationality of the exclusion within that scheme.

Determining the objective of legislation may in some cases require evidence but in most it will be possible to “make reasonable inferences from the provisions of the statute itself and the facts of the case” (per Costello J. in Molyneux v. Ireland [1997] IEHC 206). However, it must be remembered that legislation may have more than one objective, and that the legislature cannot be obliged to craft a perfect fit in respect of each objective.”

Applying Donnelly to the Scheme

134. As can be seen from the applicable test, a key question in the analysis is that of identifying the objective of the statutory scheme, as once the relevant discrimination is identified, it must be assessed for its relevance and legitimacy by reference to the statutory objective.

135. The statutory objective of the Scheme in so far as it relates to spouses’ pensions, is on the State’s view, to provide a pension to surviving spouses and civil partners. On the face of it the exclusion of “cohabitants” from the pension benefit could be said to be rational on the basis of a difference in social function, in broad terms, between married and civil partners who elect for a particular status for their relationship which brings with it both benefits and obligations (in particular the obligation in broad terms to financially provide for their partner in the event of death or dissolution of the marriage or civil partnership)

and cohabitants who have not made that election and do not have the same level of rights and obligations on death or dissolution of the relationship. This view is also supported by the fact that s.72 Pensions Act 1990 as amended allows derogation from the principle of equal treatment for married couples and civil partners in an occupational pensions context.

136. However, it seems to me that such analysis cannot be validly applied to this Scheme when its terms are viewed in their totality. That is because some aspects of the eligibility criteria and all aspects of the cessation/regrant criteria of the Scheme in so far as they relate to spouses’ pension equate married and civil partners with cohabitees for the purposes of the need sought to be addressed by the pension benefit. Thus, if the married or civil partner is cohabiting with someone else at the time of the member’s death, the benefit will not be payable; the need otherwise met by the provision of the pension to the survivor is assumed to be met by their subsequent cohabitation. Similarly, if the benefit is provided on the death of the member and the surviving spouse/civil partner subsequently cohabits, the benefit will be withdrawn, again on the apparent basis that the need otherwise met by the provision of the pension to the survivor is assumed to be met by their subsequent cohabitation and therefore the pension is no longer regarded by the Scheme as necessary. If the subsequent cohabitation ends, the pension can be regranted, again on the basis that the need comes back into play.

137. Accordingly, under article 6(1)(a) of the 1977 SI as amended, if the “widow” (which as a result of subsequent amendments to the Scheme should now be read as “surviving spouse or civil partner”) was at the time of the death of the member cohabiting with a man (now to be read as a person of either sex) other than the deceased “as man and wife”

then the surviving spouse will not be granted a pension i.e. will not be eligible for a pension.

138. Equivalent provisions apply to the cessation of a spouses’ pension under the Scheme as provided for in article 6(1)(b) of the 1977 SI as amended; no pension shall be paid if at any time after the member’s death the “widow” (surviving spouse or civil partner) is remarried (which now includes a new civil partnership) or “is cohabiting with any man”

(again, now to be read as a person of either sex).

139. The fact that cohabitation is woven into both the grant and cessation provisions is clear from the terms of article 6(2)(a) of the 1977 SI as amended which refer to when a pension under the Scheme is “not granted or ceases under the said paragraph (1)”. This is also clear from the terms of article 6(2)(b) where the pension “withheld or ceased” on subsequent marriage or cohabitation can be the subject of “grant or regrant” where the Minister is satisfied that the subsequent marriage or cohabitation has come to an end (in addition to the power to grant or regrant where there are compassionate grounds for paying the pension). The “grant or regrant” as appropriate is from the date on which the marriage or cohabitation ended or if compassionate grounds are being invoked, the date on which the relevant application is received by the Minister.

140. Accordingly, the statutory criteria view cohabitation as being on all fours with marriage for the purposes of ascertaining whether eligibility for the spouses’ pension is met (in circumstances where the surviving spouse is in a new life partner relationship at the date of the member’s death) and likewise for the purposes of the cessation/re-grant provisions for that pension. These core provisions of the Scheme as regards spouses’ pension assume that the need for support is met equally by marriage/civil partnership and cohabitation “as man and wife” for certain eligibility purposes and for all cessation/regrant purposes.

141. From these terms of the Scheme, it is reasonable to infer that the need sought to be addressed by the provision of a pension is premised on the surviving spouse/civil partner of the deceased member being either financially dependent on or at least benefitting from the financial support of the member during his or her lifetime; the pension granted meets the financial need which arises when that financial support is lost on the death of the member. (I think it is fair to say that the need had shifted over time from one of providing solely for surviving financially dependent wives to one of providing financial support for surviving spouses and, later, civil partners who were either financially dependent or financially interdependent on the deceased member).

142. However it is assumed that this need (i.e. the need for financial support following the member’s death) either does not arise if the member’s spouse is cohabiting with another person at the time of the death (as the need is then assumed to be met by the support provided by that cohabitee) or is met by a new life partner if the member subsequently co-habits or remarries/enters a new civil partnership.

143. Viewed in this way, the statutory objective of the Scheme in so far as it relates to spouses’ pension benefit is to provide a benefit by way of pension to a surviving life partner of a member to meet the need for financial support of the surviving life partner which would otherwise have been provided by the member when alive.

144. For this purpose, and subject to identifying more precisely what is meant by “cohabitant”, there is no difference in social function between a surviving spouse/civil partner and a surviving cohabitant. The member provided emotional and financial support to his married or civil partner while alive; the need arising from the loss of that support is intended to be met by the pension benefit; once the need is being met by a new married,

civil or cohabiting partner (who are crucially all treated alike for this purpose) the pension benefit is either not granted or is withdrawn.

145. I have considered whether I could conclude that the cessation provisions simply pursued a different statutory purpose to the eligibility provisions or were otherwise not relevant to an illumination of the overall statutory objective of the Scheme as regards spouses’ pension benefit.

146. As regards a potentially different purpose for eligibility or cessation criteria linked to cohabitation, I do not accept the State’s submission that cost considerations justify the equation of married and civil partners with cohabitants for the purposes of the cessation provisions relating to the spouses’ pension and that these provisions are irrelevant to the distinction otherwise made for eligibility purposes between married/civil partners on the one hand and cohabitants on the other. There is no evidence that this is so. I do not think it can be inferred. Rather it seems to me that these provisions are central to identifying in the round the objective of the statutory scheme and the needs which it seeks to meet. I do not think I can disregard the interlinked provisions in relation to eligibility and cessation/regrant for that essential exercise.

147. If the Scheme’s provisions did not include eligibility or cessation/regrant criteria linking cohabitation with marriage and civil partnership, there would be a compelling case that the statutory classification of eligibility for spouses’ pension between married and civil partners on the one hand and cohabitants on the other was justified because of the different legal status (and therefore social function) of those relationships; such a

conclusion would be reinforced by the terms of s.72 Pensions Act 1990 as amended. However, to overlook or put to one side the Scheme’s eligibility or cessation/regrant criteria linking cohabitation with marriage and civil partnership would be to disregard the court's task of seeking to identify the objective of the statutory scheme, by reference to the terms of the scheme in their totality, and to then assess the legitimacy of the discrimination by reference to the statutory objective so identified. I cannot ignore or re-write core aspects of the terms of the Scheme for the purposes of ascertaining its purpose or objective.

148. Having identified the statutory objective of the Scheme as regards spouses’ pension benefit (as set out at para 143 above), it is necessary to tease out further the question of the class of cohabitant who is the true relevant comparator for the purposes of assessing the compatibility of the relevant provisions of the Scheme with article 40.1.

149. In O’Meara, the question of the relevant comparator was arguably more straightforward as the relevant legislation, the 2005 Act, expressly tied the concept of “cohabitant” to the statutory definition of “cohabitant” in the 2010 Act.

150. That is not the case in respect of the Scheme. The term “cohabitant” is not defined as such. Article 6(1)(a) of the 1977 SI uses the phrase “cohabiting with a man other than the deceased as man and wife” and article 6(1)(b) uses the phrase “cohabiting with any man”.

The wording of article 6(2)(b) seems to equate these two formulations under the single term “cohabitation”. It is further of note that article 3(2) of the 1977 SI provides in material part that a “child” for the purposes of the Scheme shall not include “a person who is cohabiting with another as man and wife”.

151. There is no definition in the Scheme of “cohabiting as man and wife” a term which covered what was colloquially known as “common law marriage” which latter term did not of itself have a legal meaning as such in an Irish context.

152. However, the term “living as man and wife”, anachronistic as it is, can I think be taken as an analogue for cohabitants who would meet the criteria for qualified cohabitants under s.172 of the 2010 Act; i.e. that they are living together in an intimate and committed relationship of a prolonged duration (two years if the parents of dependent children or five years otherwise) and are, at least in broad terms, sharing a home and financial commitments which seems to me to be the essence of the statutory criteria for qualified cohabitants under s.172.

153. Accordingly, on this basis, I am satisfied that a surviving qualified cohabitant of a member is a valid comparator with a surviving spouse or civil partner of a member in the context in which this comparison is advanced.

154. In my view, it is not rational for the spouses’ benefit provisions of the Scheme to differentiate or discriminate between these different classes (married couples and civil partners in one class, and qualified cohabitants in the other) when viewed against the statutory purpose of the Scheme as regards the spouses’ pension benefit and in light of the social function involved. Using the language of O’Donnell C.J. at para. 34 of

O’Meara, the Scheme “recognises that an unmarried partner supplies the same benefits to a partner…as a married partner does for the purposes of removing the benefit but does the opposite when granting it”. To that might be added the gloss that the recognition of the same benefits being provided by both the married and unmarried partner for the purposes of removing the spouses’ benefit under the Scheme also applies to certain circumstances of eligibility for, and re-grant of, the benefit under the Scheme.

155. I do not see that this analysis is disturbed by the terms of the s.72 Pensions Act 1990 as amended. While this provision allows for a derogation on grounds of marital and civil status from the principle of equal pensions treatment provided for in that Act, it does not follow that discrimination in any and all occupational pension schemes on the grounds of marital or civil status is necessarily compatible with article 40.1; the relevant provisions providing for such discrimination in a State-backed statutory occupational pension scheme still have to be compatible with article 40.1 by reference to the test set out in Donnelly. The actual terms of the scheme in question and the manner in which it discriminates in light of the purposes of the scheme are key. For the reasons set out in the analysis above, in my view the terms of the Scheme impugned by the applicant in this case fall foul of the Donnelly test.

156. I would accordingly conclude that:

(i) the statutory objective of the Scheme as regards the spouses’ pension benefit is to provide a benefit to a surviving life partner to meet the financial support which would otherwise have been provided by the member to that life partner when alive;

(ii) for this purpose, there is no difference in social function between a surviving spouse/civil partner and a surviving qualified cohabitant of the member;

(iii) it is not rational to differentiate or discriminate between these different classes (surviving spouse/civil partner of a member and surviving qualified cohabitant of a member) when viewed against the statutory purpose of the Scheme as regards the spouses’ pension benefit and in light of the social function involved. Such discrimination is arbitrary, capricious, or otherwise not reasonably capable, when objectively viewed in the light of the social function involved, of supporting the selection or classification complained of.

Conclusion

157. While I will discuss with counsel the precise form of order which should flow from the terms of this judgment, it seems to me that the applicant, as a qualified cohabitant of the late Mr Kingston, is entitled to a declaration that the failure of the Scheme to provide him with a spouses’ pension is incompatible with article 40.1 of the Constitution.