Heather Humphreys (Cavan-Monaghan, Fine Gael) | Oireachtas source

I thank the Labour Party for its work on progressing this Bill and for providing the House with an opportunity to discuss this important matter today. I want to acknowledge Johnny, Maria and others in the Visitors Gallery. At the core of this issue is human loss. I know there are many cases of personal pain which are known to Senators across the House. Senator Wall was in touch with me directly last week on this matter. I fully accept the spirit in which this Bill is being brought forward in. I know the motivation behind the Bill is the very sad case of Johnny O'Meara who lost his long-term partner, and the mother of his three children, Michelle. Unfortunately, Johnny did not satisfy the eligibility requirements for the widower's contributory pension on the grounds that surviving cohabitant partners are not eligible for the payment under the current law. I have huge sympathy for Johnny O'Meara and the tragic circumstances of this case, but the issue I face as Minister is that this is an area which has much wider implications than those pertaining to the Department of Social Protection.

When you get married or enter a civil partnership, that confers certain legal rights, for example in relation to inheritance or property law. There are also certain tax reliefs for married couples. There are issues here which go far beyond the Department of Social Protection. For that reason, I believe it is important that this issue is considered holistically across government in consultation with other Departments and with the Attorney General. In addition, the citizens' assembly has made some recommendations in this area, and those issues are currently being considered by the Joint Committee on Gender Equality. I think it would be very useful for this Bill to be referred to that committee so that it can be considered in detail as part of the broader piece of work it is undertaking. While I am not opposing the Bill today, I stress that this matter needs to be given detailed consideration. Indeed, there might be a need for constitutional reform in this area, which is something the Oireachtas committee is examining. For these reasons, I have tabled a timed amendment to provide time for that work to be carried out.

For the benefit of the House, I will go through some of these issues in greater detail now. The widow's, widower's or surviving civil partner's contributory pension is paid to the husband, wife or civil partner of a deceased person. For the purposes of my remarks today, I will use the phrase "widow's contributory pension" when referring to this pension. The widow's contributory pension is a weekly pension, available to those who satisfy the necessary PRSI contribution conditions, either on their own record or on that of the deceased spouse, subject to certain criteria. Surviving cohabitants are ineligible for the payment. The Government recognises that this issue is important for many people who find themselves in a similar position to the O'Meara family. However, as I have said, it is an issue that is wider than the social welfare code and deserves to be considered in the round.The legal context governing relationships such as marriage is broader than the social protection system. Marriage and civil partnership are regulated by the Minister for Justice and are provided for in various civil partnership, marriage and family law Acts. Entering into a marriage or civil partnership is a legal act, which confers both rights and obligations on both parties distinct from those between cohabiting couples. Widows, widowers and surviving civil partners, who become bereaved, therefore lose someone who had legal duties towards them, and the social welfare code recognises this by providing a pension to them, subject to certain conditions. Where the legal framework changes, the social welfare code is examined for appropriate changes and so it was that the widows' contributory pension was expanded to include widowers in 1994, surviving civil partners in 2010 and same-sex surviving spouses after the passing of the marriage equality referendum in 2015.

Changes on the basis suggested in the Bill would have the effect of expanding the rights of cohabiting couples beyond those currently regulated under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, where property rights and financial reliefs are subject to an application to a court in certain circumstances, such as during the lifetime of the other party to the relationship, and where financial dependence is established. While a surviving cohabitant can make an application to the court to seek provision from the estate of a deceased cohabitant, this is in limited circumstances. Were these amendments to be introduced, there would be significant policy and operational changes required in implementing the changes to facilitate surviving cohabitants, which would require extensive consultation and interdepartmental co-operation. Therefore, any changes to the social welfare code would require consideration of existing legislation and consultation with other Departments and the Attorney General.

In the programme for Government, we committed to responding to the recommendations of the Citizens' Assembly on Gender Equality. The assembly issued its report and made a series of recommendations in June 2021. As part of our response to those recommendations, the Government established a Joint Committee on Gender Equality. The joint committee is currently working hard at considering the citizens' assembly report, including issues around the status of the non-marital family. These include complex constitutional and family law matters. The joint committee issued its interim report on constitutional change in July 2022. This report recommends that Article 41 of the Constitution be amended so that it would protect family life, with the protection afforded to the family not limited to the marital family. The joint committee is expected to issue its final report by the end of the year. Following this, the Government and the Oireachtas should be allowed time for a holistic and careful consideration of the committee's findings, and any subsequent necessary legislation or possible constitutional amendments that may be required. Out of respect to that process, changes to the social welfare code should not be made in isolation.

While accepting the spirit in which this Bill is being brought forward, there are number of technical difficulties with the Bill in its present form. The Bill, as drafted, adds the term "surviving cohabitant" to the Act wherever the terms widow, widower, or surviving civil partner appear without considering how this would operate in practice. For example, the definition of "surviving cohabitant" is "a cohabitant who was a cohabitant with a deceased cohabitant at the date of the death". However, no other components of the relationship required to establish this status are included in the Bill. There is no requirement to be in a committed or intimate relationship or to have been in such a relationship for any length of time. The Bill, as drafted, introduces rights for cohabitants to the widows contributory pension but does not contextualise these rights when compared to marital spouses' rights. This could lead to situations of potential conflict and confusion between marital spouses' rights and cohabitants' rights. The current rights enjoyed by a marital spouse include that these rights continue if the marriage is dissolved and the spouse remains unmarried or does not cohabit with another person. In some cases, providing rights for cohabitants could result in the diminution of the rights of marital spouses and there are concerns that this would be in conflict with Article 41 of the Constitution.

The Bill, as drafted, is also silent on the impact of this proposed change on other areas of the Social Welfare Consolidation Act 2005, which is the principal Act, leading to an inconsistent position in relation to other contingent benefits such as death benefit, widowed parent grant or the widows non-contributory pension. l am advised that there are up to 400 references to "widow" in the Act, which would require review in light of the proposed change.

As I said, while the Government is not opposing the Bill this evening, we are calling for time to consider the many complex matters that need to be addressed before the Bill proceeds. I want to be absolutely clear that we are very concerned with the position grieving families find themselves in and wish to highlight the supports available to those who do not qualify for the widows contributory pension. A surviving cohabitant who was not married to their deceased former partner may be entitled to other weekly social welfare payments if he or she has an income need. Child benefit is also payable to all persons with dependent children, regardless of household income, contribution record or category and is financed from general taxation. For those who are suffering a terrible loss, there is no difference in that pain if they are married or not. However, for the reasons I have outlined, this is not a straightforward issue and is much wider than the social protection code. The Government seeks to defer consideration of this Bill for 12 months, to allow for it to be thoroughly assessed in the wider legal context and in light of the impending recommendations from the Joint Committee on Gender Equality.

I believe this time will provide the Government and Members of this House an opportunity to consider the matter in a holistic and integrated manner and to avoid any unintended consequences of implementing the measure at this time. I look forward to further constructive debate on this issue, while being mindful of the overarching aim to protect those who are bereaved as best we can. I thank the Senators for bringing forward the Bill and all the Senators who have highlighted how important it is for surviving cohabitants to be supported at the time of bereavement.