Ms Eilis Barry:

FLAC is very grateful for the opportunity to address the joint committee as part of its consideration of the Social Welfare (Bereaved Partner's Pension) Bill 2025. As members know, it was intended that the Bill would give effect to the Supreme Court's decision in the O'Meara case. We represented John O'Meara and his children in their successful challenge to the legislation that excluded John from access to a widower's contributory pension following the tragic death of the children's mother, Michelle Batey, who was John's partner of more than two decades. The Supreme Court declared that the legislation, which provides for payments to bereaved families only in circumstances where the parents had been married or in a civil partnership, is unconstitutional by reference to the Constitution's guarantee of equality before the law. The Chief Justice found there is "no relevant constitutional distinction between children in a long-standing non-marital unit such as the O'Meara's and those of a comparable family whose parents were married".

The Bill will expand the entitlement to social welfare schemes aimed at bereaved partners and families to qualified cohabitants and their children. We very much welcome the Government's implementation of the O'Meara decision through this legislation. In particular, we welcome the inclusion of bereaved cohabitants who do not have children in the expanded scope of the relevant schemes. While not strictly required by the O’Meara judgment, it represents a compassionate and generous response to its findings. The Bill will have a significant positive impact for cohabiting couples and families who, like the O'Meara family, suffer a bereavement and the emotional and financial impact it inevitably entails.

Regrettably, the Bill also contains proposals to remove the current entitlement of people who are divorced or separated to a survivor's pension if their former partner dies. Such an entitlement has been in place for almost 20 years. It was introduced after the second divorce referendum in recognition that the death of a divorced or separated partner can bring about a financial loss for families who may have been reliant on maintenance from the deceased. I am old enough to remember the first divorce referendum, which was rejected on the grounds that it failed to properly provide for dependent adults and children. The Bill proposes to water down protections that were introduced subsequently to shore up the protection for those people.

We believe there are strong legal, policy and practical rationales for removing the proposals from the Bill to reduce the social welfare entitlements of divorced and separated people. With the greatest respect, we do not accept the various arguments put forward by the Minister for Social Protection and his Department that attempt to justify the changes proposed.

First, the changes are not required by the Supreme Court judgment in the O'Meara case and may, in fact, be inconsistent with that judgment. The reduction in the social welfare entitlements of a particularly vulnerable category of lone parents and their children, namely, those who were reliant on maintenance from a former partner who has died, is in no way required by the O'Meara judgment. Indeed, the proposed changes may be inconsistent with the equality and children's rights principles that underpin the landmark judgment. The Bill proposes to treat the children of separated or divorced parents less favourably than children whose parents are married, in a civil partnership or cohabiting. This is despite the fact that in the O'Meara judgment, the Chief Justice placed an emphasis on "the rights of all children, and obligations of their parents, irrespective of the status of their parents". The approach taken in the Bill seeks to achieve equality by levelling down existing levels of entitlement when it is entirely possible to take a more generous and equitable levelling-up approach by expanding entitlement to include divorced and separated cohabitants.

Second, the restrictive new conditions will impact on all future applicants for the payments. The proposed changes will mean all future applicants for a survivor’s pension will be required to prove to the Department of Social Protection that they were living with their partner in an intimate and committed relationship in the two years before that partner's death, even where they were married and living in the same house. There is no similar requirement in other areas of social welfare law for married couples to establish that they have been in an intimate and committed relationship. At present, the existence of a marriage or civil partnership is sufficient to establish entitlement to a survivor's pension, subject to the other conditions being satisfied. The new rules require the potentially invasive examination of the nature of a couple's relationship and whether they were living together. This would occur following a bereavement, when respecting the surviving partner's right to privacy and dignity should be of tantamount concern.

Third, the numbers of separated and divorced people who require the payment are small. The Irish social welfare system has long been concerned to protect the particular needs of bereaved people and families and has made special provision for them.

Since the introduction of divorce in the mid-1990s, the social welfare system has provided a safety net for families where the surviving parent is separated or divorced but has not remarried or begun cohabiting with another person. This safety net is still needed now. Lone parents remain one of the groups most at risk of experiencing poverty and disadvantage and we know that most lone parents are women. Separated and divorced people make up a very small fraction of the number of people seeking widow's or widower's contributory pensions. The Department estimates that there are only approximately 100 newly divorced claimants for this payment each year.

It is a significant cause for concern that the Department does not seem to have conducted any human rights, equality or anti-poverty impact assessments concerning the proposals. This is despite the fact that the public sector human rights and equality duty puts a mandatory obligation on the Department to have regard for human rights, equality and anti-poverty concerns when it carries out any of its functions, including matters such as the Bill under consideration by this committee.

We have drafted a number of amendments to the Bill that we believe would address our concerns about the legislation and ensure that the relevant social welfare payments remain available to bereaved families where the parents were divorced or separated. These amendments, and the rationale behind them, are outlined in detail in our written submission, which we have provided to the joint committee.

With the amendments, we are trying to prevent the introduction of new inequalities for families of divorced or separated parents. We believe that our proposals will not arbitrarily exclude any children of any family based on a committed, stable relationship. It is an opportunity to ensure equal treatment of all children irrespective of the status of their parents. It will align the Bill with the Supreme Court judgment. There are only tiny numbers involved; there are no floodgates to fear. It would be a very fitting tribute to John, who at the very worst time in his life and that of his children had to show enormous courage and resilience and take on the might of the State to secure the rights of his children. Let us not introduce a new inequality and subject another family to what John and his family had to go through.

My colleague, Mr. Christopher Bowes, FLAC’s policy and public affairs manager who drafted the amendments, and I would be happy to answer any questions that members of the joint committee may have.