State’s refusal of spouse’s pension unconstitutional, court finds
Man argued he was discriminated against by refusal to allow him benefit from his late partner’s contributions to a Civil Service pension scheme
Irish Times - "State’s refusal of spouse’s pension [to unmarried partner] unconstitutional, court finds"
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Howth Head
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Interesting result - which could also have implications for those challenging the pension abatement rules for public servants. (See thread elsewhere.) The issues are very similar.
"Mr Jones argued that the pensions scheme, in denying him the benefits of Mr Kingston’s contributions to the scheme, was inconsistent with article 40.1 of Bunreacht na hÉireann, which provides that all citizens are held as equal before the law."
"Mr Jones argued that the pensions scheme, in denying him the benefits of Mr Kingston’s contributions to the scheme, was inconsistent with article 40.1 of Bunreacht na hÉireann, which provides that all citizens are held as equal before the law."
This I presume?
Has anyone ever challenged the pension abatement
If you have a public sector pension and take up employment in the public sector your pension is subject to abatement. If you take up private sector work it is not abated. This seems to be unfair. Your pension is based on your service and you have paid into it so why should you lose out through...
www.askaboutmoney.com
There is also the situation where certain citizens under age 70 who are living with a spouse, civil partner or cohabitant are not equal before the law regarding qualification for the Household benefits package.
These citizens can be denied qualification for Household benefits package as set out below.
Whereas similar citizens under 70 who are living with other family members, friends or rent paying house sharers are not subjected to any limitations regarding qualification for Household benefits package.
"Applicants aged BETWEEN 66 AND 70:
In addition to the conditions that apply to applicants aged 70 or over (as listed above), applicants must be getting a qualifying payment (see list of qualifying payments) or alternatively satisfy a means test.
The Qualifying payments for those aged between 66 and under 70 are:
State Pension Contributory
State Pension Non Contributory
Bereaved Partner’s Contributory Pension or Bereaved Partner’s (Non-Contributory) Pension
Carer’s Allowance (must be residing with the person they are caring for)
Deserted Wife’s Benefit
A Garda Widow’s Ordinary Pension from the Department of Justice, Home Affairs and Migration
A Social Security Pension/Benefit covered by EU Laws or from a country Ireland has a Social Security Agreement with
Incapacity Supplement (for at least 12 months) with Disablement Benefit
AND
If applicable, living with spouse, civil partner or cohabitant as detailed below
In addition to above qualifying condition, an applicant’s spouse/civil partner or cohabitant must be a “Qualified Adult”.
A spouse/civil partner or cohabitant is regarded as a “Qualified Adult” for the purposes of the Household Benefits Package if:
The applicant is receiving an increase for a Qualified Adult with his/her payment for this person or would have received and increase but for the fact that he/she is in receipt of a Social Welfare payment in his/her own right.
OR
Is in receipt of a qualifying social welfare payment in their own right
OR
Satisfies a means test, if they are on a benefit payment or are aged over 66."
https://www.gov.ie/en/department-of-social-protection/publications/operational-guidelines-household-benefits-package/#:~:text=Applicants aged BETWEEN,aged over 66.
These citizens can be denied qualification for Household benefits package as set out below.
Whereas similar citizens under 70 who are living with other family members, friends or rent paying house sharers are not subjected to any limitations regarding qualification for Household benefits package.
"Applicants aged BETWEEN 66 AND 70:
In addition to the conditions that apply to applicants aged 70 or over (as listed above), applicants must be getting a qualifying payment (see list of qualifying payments) or alternatively satisfy a means test.
The Qualifying payments for those aged between 66 and under 70 are:
State Pension Contributory
State Pension Non Contributory
Bereaved Partner’s Contributory Pension or Bereaved Partner’s (Non-Contributory) Pension
Carer’s Allowance (must be residing with the person they are caring for)
Deserted Wife’s Benefit
A Garda Widow’s Ordinary Pension from the Department of Justice, Home Affairs and Migration
A Social Security Pension/Benefit covered by EU Laws or from a country Ireland has a Social Security Agreement with
Incapacity Supplement (for at least 12 months) with Disablement Benefit
AND
If applicable, living with spouse, civil partner or cohabitant as detailed below
In addition to above qualifying condition, an applicant’s spouse/civil partner or cohabitant must be a “Qualified Adult”.
A spouse/civil partner or cohabitant is regarded as a “Qualified Adult” for the purposes of the Household Benefits Package if:
The applicant is receiving an increase for a Qualified Adult with his/her payment for this person or would have received and increase but for the fact that he/she is in receipt of a Social Welfare payment in his/her own right.
OR
Is in receipt of a qualifying social welfare payment in their own right
OR
Satisfies a means test, if they are on a benefit payment or are aged over 66."
https://www.gov.ie/en/department-of-social-protection/publications/operational-guidelines-household-benefits-package/#:~:text=Applicants aged BETWEEN,aged over 66.
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They shouldn't. There was a ruling recently on widowers pension too. As family structures are changing our laws need to keep up with this.
Marriage happens on a specific date. If a couple marries on 1st January and one dies 3 weeks later any rights and benefits that accrue to widowhood come into effect immediately. Would 3 weeks cohabiting result in the same rights and benefits? If not, what duration applies?
Five years in this case, or two if you have children together.
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That should be decided by the electorate, not the judiciary.
Very interesting judgment, with potentially widespread ramifications. Almost inevitable that the state will appeal it.
Nobody would have been more pleased with this outcome than the applicant’s deceased partner, a remarkable lawyer and passionate believer in equality and justice and a deeply committed civil servant.
Judgment is available here
Nobody would have been more pleased with this outcome than the applicant’s deceased partner, a remarkable lawyer and passionate believer in equality and justice and a deeply committed civil servant.
Judgment is available here
The decision was made on Constitutional grounds. The Constitution was approved by the electorate. The court isn't legislating, it is interpreting, which is it's role.
JoeRoberts
Registered User
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This is the key. Another judge may well interpret differently.
I disagree, not that family structures are changing, they obviously are. People choose not to get married, that is a deliberate choice. I hear lots of people say things that they don't need the state involved to prove their love etc. but thats what marriage is a legal contract that can enable the state to treat a couple a certain way.
It seems to be people who had the opportunity to marry and decided not to now what rules changed to benefit them. The result is that the choice not to enter a marriage gets reduced for others as you end up basically being as good as legally married after a number of years of cohabiting.
People live together, particularly when younger as a trial to see if they want to get married. That choice should not be eroded.
Correct. Which is one of the reasons why there is an appeal process.
In some cases it is a choice. In many others it isn't. There are many bars to marriage.
I hear your concern but I don’t think you have anything to worry about. There are many reasons why couples do not get married, not all of which represent a choice. And in any event the basis on which this case was decided harbours no risk to the transience of a short term trial relationship.
The applicant applied and was successful on the basis that they were a qualified cohabitant within the meaning of Section 172 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010. This section in full is as follows:
Paragraph 5 (b) stipulates that the couple were living together for at least 5 years, and Subsection 2 sets out seven circumstantial tests that the court must take into account in determining whether the couple are in fact cohabitants. On the basis of the judgement it would appear that the court formed the opinion that this couple were indeed cohabitants and that the survivor is a qualified cohabitant within the meaning of the Act.
This is entirely different to someone rocking up for a coffee, staying over and doing the business, having breakfast and dropping back with a few runners, jeans and tops and seeing if it will work out if they stick around for a few weeks. The 5 year bar (2 years or more, in the case where they are the parents of one or more dependent children) combined with the circumstantial tests give the court the guidance it needs to recognise that there is a durable relationship and basis for financial and other interdependence.
I can’t see that this in any way erodes the choice by younger people to live together as a trial to see if they want to get married. Quite the opposite in fact.