Delivering judgment for the High Court, Mr Justice Cian Ferriter determined that the statutory objective of the Civil Service Spouses’ and Children’s Contributory Pension Scheme is to provide a benefit to a surviving life partner to meet the financial support which would have been provided by the member when alive, and for that purpose, “there is no difference in social function between a surviving spouse/civil partner and a surviving qualified cohabitant of the member”.

Background

The applicant and his life partner, the late James Kingston, lived together in an intimate and 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.

As a result of his disability, the applicant was dependent upon Mr Kingston, both financially and in respect of support and care. The couple had discussed marriage prior to Mr Kingston’s death.

Following Mr Kingston’s death, the applicant applied to the Circuit Court under the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010, pursuant to which he was declared to be a “qualified cohabitant” within the meaning of s.172 of the 2010 Act.

Mr Kingston was a member of the Civil Service Spouses’ and Children’s Contributory Pension Scheme. Following the order of the Circuit Court, the applicant applied for the benefits provided to the surviving spouses of deceased civil servants under the Scheme.

While it provided for the payment of a spouse’s pension to the spouses and civil partners of deceased Scheme members, the Scheme did not provide for payment of a spouse’s pension to unmarried life partners or qualified cohabitants. Accordingly, the applicant’s application was refused on 18 May 2023.

In January 2024, the Supreme Court in O’Meara v Minister for Social Protection [2024] IESC 1, [2024] 1 ILRM 437 found that a provision of the Social Welfare Consolidation Act 2005 which permitted the payment of a Widowers’ Contributory Pension (WCP) upon the death of a spouse/civil partner but not to a surviving cohabitant, breached the equality provisions of Article 40.1 of the Constitution insofar as Mr O’Meara as a parent was denied WCP following the death of his partner.
 
The applicant’s solicitor wrote to the minister highlighting O’Meara and calling upon the minister to confirm that the applicant would be entitled to payment of a spouse’s pension under the Scheme in light thereof.

On 11 September 2024, the minister’s private secretary responded, noting that survivor benefits in the public service are occupational pension provisions, that the WCP differs from those as a social insurance benefit available to all who have paid the relevant social insurance contributions, and accordingly, that no decision had been taken to change the terms of the Scheme to allow receipt of the spousal pension by a person who was not married to or in a civil partnership with the pension scheme member.

The applicant brought judicial review proceedings seeking to quash the minister’s decision.

The High Court

Mr Justice Ferriter considered that caution was required in transposing the analysis of a social welfare pension case such as O’Meara to an occupational pension case, where 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”.

The judge noted that as recognised by s.72 of the Pensions Act 1990, it may be perfectly legitimate for employers 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 those who do not enjoy such legal status on the other.

The court was not satisfied that it could arrive at the same conclusion as the Supreme Court in O’Meara solely on the basis that there are overlapping features between the respective pension schemes, where the context and 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.

Accepting inter alia that occupational pension schemes differ from social welfare benefits and that it is in principle legitimate to confine benefits under such a scheme to those who have accepted the “burdens and benefits” of marital or civil status, the court moved to consider whether the Scheme on its own terms was compatible with Article 40.1.

Mr Justice Ferriter considered the “pure equality” claim before the court in light of the principles governing the application of Article 40.1 re-stated in Donnelly v. Minister for Social Protection [2023] 2 IR 415, which dictate 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.

Finding that a key question in the analysis is the identification of the objective of the statutory scheme, the court inferred from the terms of the Scheme 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.”

The court continued: “However it is assumed that this need… 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.”

Mr Justice Ferriter reasoned that in those circumstances, the statutory objective of the Scheme insofar as same relates to spouse’s pension benefit is to provide a benefit to a surviving life partner of a member to meet their need for financial support which would otherwise have been provided by that member when alive.

The judge determined that for those purposes, there is no difference in social function between a surviving spouse or civil partner and a surviving cohabitant. 

The court explained that 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 is justified due to the different legal status and social function of those relationships.

Mr Justice Ferriter was satisfied that it was not rational for the spouses’ benefit provisions of the Scheme to differentiate or discriminate between married couples and civil partners in one class, and qualified cohabitants in the other class when viewed against the statutory purpose of the Scheme and in light of the social function involved.

The judge was not convinced that the court’s analysis was disturbed by s.72 of the 1990 Act, noting that while that provision allows for a derogation on grounds of marital and civil status from the principle of equal pensions treatment, “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”.

Conclusion

Accordingly, the High Court indicated its view 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.

Freddie Jones v Minister for Public Expenditure, National Development Plan Delivery and Reform & Ors [2026] IEHC 19