Peter Cleere (Carlow-Kilkenny, Fianna Fail)
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122. To ask the Minister for Employment Affairs and Social Protection regarding new legislation being implemented following the Supreme Court decision in the O'Meara case, whether the definition of a cohabiting couple will be changed from that defined in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, or if the definition can be re-examined to be more inclusive; whether it will allow for backdating of payments in cases such as that outlined in correspondence (details supplied); and if he will make a statement on the matter. [24668/25]

Dara Calleary (Mayo, Fianna Fail)
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Under the law as currently enacted, entitlement to a Widows, Widowers or Surviving Civil Partner’s Contributory pension is only available to a surviving partner who was party to a marriage or civil partnership.

On 22nd January 2024, the Supreme Court delivered its judgment on the entitlement of an unmarried cohabitant to a Widower's Contributory Pension. The Supreme Court judgment overruled a previous High Court decision and found in favour of the claimant and his children.

In simple terms, the Court found that section 124 of the Social Welfare Consolidation Act 2005 (as amended) is inconsistent with the Constitution insofar as it excluded the claimant from the category of persons entitled to benefit from it. The Court reached that conclusion on the basis of the equality guarantee contained in Article 40.1 of the Constitution. The Supreme Court judgment notes that to resolve the issue raised by the judgment, a legislative amendment is required.

In June 2024, the then Government approved the priority drafting of the legislative changes required to respond to the Supreme Court decision. The General Scheme of a Bill was referred to the Office of Parliamentary Counsel for priority drafting and to the Joint Oireachtas Committee on Social Protection, Community and Rural Development and the Islands for Pre-Legislative Scrutiny. The Committee issued its report and recommendations on the 26th of July 2024.

The draft legislation raised a number of complex issues that required the advices of the Office of the Attorney General and ongoing engagement between officials in the Department of Social Protection and the Office of Parliamentary Counsel.

I am pleased to say that following Government approval, the Social Welfare (Bereaved Partner's Pension) Bill 2025 was published on 13th March and Second Stage concluded in Dáil Eireann on 27th March. I look forward to working with the Oireachtas in ensuring this important legislation is enacted.

The definition of a surviving qualified cohabitant contained in the Bill is aligned with the definition of qualifying cohabitants contained in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 (“the 2010 Act”). This definition provides for a couple to become qualified cohabitants where they have lived together in an intimate and committed relationship for a period of 2 years or more where there are children of the relationship, or 5 years if otherwise.

The 2010 Act provides the legal framework for establishing the existence of cohabiting relationships that provide rights and obligations to those cohabitants. In its judgment, the Supreme Court noted that the State had already defined cohabitation within the 2010 Act. Therefore, reliance on the existing legal framework is a reasonable approach for the Oireachtas to adopt in regulating access to the Bereaved Partner's Contributory Pension.

There is no limit on the date when the death of a qualified cohabiting partner occurred provided the criteria was met at that time and eligibility continues at the date of claim. Under the Bill, it is proposed that payments will be backdated to the date of the Supreme Court judgment of 22nd January 2024, when section 124 was found to be inconsistent with the Constitution, or the date of death of deceased partner, whichever is later. Payments to surviving qualifying cohabitants will be made once the Bill is enacted.

I trust this clarifies the matter for the Deputy.