Incoherence in Survivor-Pension Rules Breaches Article 40.1: Qualified Cohabitants Cannot Be Excluded Where Cohabitation Is Treated as Equivalent for Withholding/Restoring Benefits

Case: Jones v Minister For Public Expenditure, National Development Plan Delivery and Reform and Ors [2026] IEHC 19

Court / Judge / Date: High Court (Ferriter J.), 19 January 2026

Procedural posture: Judicial review challenging a refusal to award a survivor’s spouse pension under the Civil Service Spouses’ and Children’s Contributory Pension Scheme (the “Scheme”).

Parties: Freddie Jones (applicant) v Minister, Ireland, and the Attorney General (respondents); Irish Human Rights and Equality Commission (notice party/amicus).

1. Introduction

The applicant, Freddie Jones, was the long-term life partner of the late James Kingston, an established civil servant and contributor to the Civil Service Spouses’ and Children’s Contributory Pension Scheme. After Mr Kingston’s death, Mr Jones obtained a Circuit Court order under Part 15 of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, 2010 declaring him a “qualified cohabitant”. He then sought the Scheme’s survivor spouse pension.

His claim was straightforward in constitutional terms: the Scheme’s survivor benefit was available to a “spouse” (and by statutory deeming, to a civil partner) but not to a qualified cohabitant. He argued that this exclusion breached the equality guarantee in Article 40.1 of the Constitution—especially in light of the Supreme Court’s reasoning in O'Meara v Minister for Social Protection [2024] IESC 1, [2024] 1 ILRM 437, which struck down a comparable exclusion in a social welfare survivor pension context.

The State resisted the claim primarily on the basis that occupational pension schemes are materially different from social welfare schemes: the former are negotiated employment benefits with contribution/funding constraints and legitimate “line-drawing” based on formal legal status (marriage/civil partnership), reinforced by statutory “savings” under the Pensions Act 1990.

The central issue for Ferriter J. was therefore not whether it would be “fair” to include cohabitants, but whether the Scheme’s classification (spouses/civil partners included; qualified cohabitants excluded) was rational and constitutionally legitimate under Article 40.1.

2. Summary of the Judgment

Ferriter J. held that the Scheme’s exclusion of the applicant, a qualified cohabitant, from the survivor spouse pension was incompatible with Article 40.1.

While cautioning against a simplistic transposition of O'Meara from social welfare to occupational pensions, the Court found the Scheme unconstitutional on its own terms because it treated cohabitation as equivalent to marriage/civil partnership for certain purposes (notably withholding, ceasing, and potentially regranting the survivor pension), yet refused to treat cohabitation as equivalent for the core purpose of granting survivor eligibility in the first place.

The internal logic of the Scheme therefore undermined the State’s justification that formal legal status was the coherent “social function” basis for differentiation. The Court indicated the applicant was entitled to a declaration that the Scheme’s failure to provide him a spouse’s pension benefit was incompatible with Article 40.1, and it would hear counsel on the precise form of final orders (including the certiorari relief sought).

3. Analysis

3.1 Precedents Cited

MD (a minor) v. Ireland [2012] 1 IR 697
Cited for the constitutional stature of equality: Denham C.J. described equality as among the “highest and noblest aspirations” and as permeating the Constitution. In this case, it framed Article 40.1 as a serious constraint on State classifications, including in benefit schemes.
Donnelly v. Minister for Social Protection [2023] 2 IR 415
The key doctrinal authority. Ferriter J. extracted and applied the re-stated Supreme Court framework: Article 40.1 prohibits discrimination grounded on “arbitrary, capricious or irrational considerations”; classifications must serve a legitimate purpose and be relevant to that purpose; scrutiny varies with context; and the Court must not substitute “fairer” policy for constitutional necessity.
Heneghan v. The Minister for Housing, Planning and Local Government [2023] 3 IR 419 and B.M. and J.M. v. Chief Appeals Officer and Others [2024] IESC 51
Cited as subsequent affirmations of the Donnelly Article 40.1 approach. They reinforced that the Donnelly framework is settled and broadly applicable.
O'Meara v Minister for Social Protection [2024] IESC 1, [2024] 1 ILRM 437
Central reference point. Ferriter J. treated O’Meara as highly instructive but not directly determinative because (i) it concerned a social welfare benefit with a different social function context, and (ii) dependent children were pivotal in O’Meara. Nevertheless, a key insight from O’Meara—the irrationality of recognising cohabitation as “equivalent” only to remove benefits—was deployed in analysing the Scheme’s internal inconsistency.
MR v An tArd Chláraitheoir [2014] 3 IR 533
Used for the methodological warning that Article 40.1 comparisons must be made with close attention to context and to proper identification of the relevant comparator (“same for the purposes for which the comparison is made”).
Dillane v Ireland [1980] ILRM 167
Provided the classic formulation (Henchy J.) of the rationality test for State classifications under Article 40.1—later channelled through Donnelly—and explicitly applicable to discriminations made by statute or delegated legislation.
Molyneux v. Ireland [1997] IEHC 206
Cited via Donnelly for the principle that legislative objectives may often be inferred from the statute’s text and the facts, without requiring extensive extrinsic evidence.

3.2 Legal Reasoning

(a) The Court’s starting point: caution about “cut and paste” from O’Meara

Ferriter J. accepted that occupational pension schemes differ from social welfare schemes. He emphasised the employment relationship, deferred remuneration logic, negotiated scheme design, contribution constraints, and exchequer funding concerns. He also accepted that it can be legitimate to restrict occupational survivor benefits to relationships having a formal legal status (marriage/civil partnership), reflecting mutual obligations and State regulation.

Crucially, he considered that O’Meara was not safely transposable because the presence of dependent children and the particular statutory anomalies of the social welfare scheme were central to the Supreme Court’s conclusion there.

(b) The pivot: the Scheme must still pass Article 40.1 scrutiny on its own terms

Having accepted contextual differences, Ferriter J. nonetheless held that a State-backed statutory occupational pension scheme is not immune from constitutional review. The analysis therefore turned to Donnelly: identify the scheme’s objective and test whether the classification is rationally connected to that objective and not arbitrary/capricious.

He characterised the claim as a “pure equality” claim (not engaging additional rights or suspect classifications) and therefore approached it with (i) the burden on the applicant, (ii) a presumption of constitutionality, and (iii) deference in fiscal/resource contexts. Notably, the applicant still succeeded.

(c) Identifying the Scheme’s objective by reading the Scheme “in the round”

The State’s justification depended on treating “formal status” as the Scheme’s core organising principle: spouses and civil partners are included because they have legally chosen a regulated status with associated rights and obligations; cohabitants have not.

Ferriter J. rejected that as an adequate description of the Scheme’s objective because the Scheme’s own operative rules undermined it. In particular, Article 6 of the 1977 SI (as amended) embeds cohabitation into:

eligibility denial (no widow’s pension if the survivor is cohabiting at the member’s death);
cessation (pension stops upon remarriage or cohabitation after death); and
regrant (pension may be restored when cohabitation ends, or on compassionate grounds).

From those provisions, the Court inferred that the Scheme’s spousal pension is, in substance, directed to meeting a support/financial need arising from the member’s death, and that the Scheme assumes this need is met (or ceases to exist) if the survivor has a new cohabiting partner—treating cohabitation as functionally equivalent to marriage/civil partnership for that purpose.

(d) The constitutional defect: internal incoherence produces arbitrary classification

The Court’s core reasoning was an internal rationality critique. Because the Scheme already treats cohabitation as equivalent to marriage/civil partnership when deciding whether to withhold, stop, or restore survivor pensions, it cannot coherently defend a bright-line exclusion of qualified cohabitants from initial eligibility by relying on the supposedly decisive social function difference of “formal legal status”.

Ferriter J. effectively concluded that, given the Scheme’s own logic, the relevant social function for spousal pension entitlement is being a surviving life partner whose support from the member has ceased. On that objective, there is “no difference in social function” between a surviving spouse/civil partner and a surviving qualified cohabitant.

He then expressly echoed the reasoning motif in O’Meara: the Scheme recognises cohabitation as equivalent for removing benefits but not for granting them. That selective equivalence rendered the classification arbitrary/capricious and not reasonably capable of supporting the exclusion.

(e) Comparator and “qualified cohabitant”

Unlike the statute in O’Meara, the Scheme did not expressly define “cohabitation” by reference to the 2010 Act. The Court nevertheless treated the Scheme’s language (“cohabiting as man and wife”) as sufficiently analogous to the modern statutory concept of a “qualified cohabitant” under s.172 of the 2010 Act (enduring, intimate, committed cohabitation with temporal thresholds). On that basis, a qualified cohabitant was accepted as the proper comparator for Article 40.1 analysis.

(f) Section 72 of the Pensions Act 1990 did not “save” the Scheme from the Constitution

The State relied on s.72 of the Pensions Act 1990 (as amended) as legislative recognition that more favourable occupational benefits for widows/widowers/civil partners are permissible. Ferriter J. treated s.72 as irrelevant to the ultimate question: a statutory “saver” within pensions legislation cannot immunise a particular State-created scheme from Article 40.1 scrutiny. The Constitution remains the controlling norm, and the Scheme’s actual structure and purpose were decisive.

3.3 Impact

Constitutional scrutiny of occupational pensions—on scheme coherence, not merely category labels:
The judgment signals that State-backed occupational pension schemes may be vulnerable not simply because they exclude cohabitants, but because they do so inconsistently with their own assumptions elsewhere (especially where cohabitation is treated as equivalent for disentitlement).
Pressure for cross-scheme reform in the public sector:
Evidence before the Court referenced wide public sector coverage and comparable survivor-benefit rules across multiple schemes. If similar “cohabitation-as-disentitlement” clauses exist elsewhere, this reasoning may invite parallel challenges or compel legislative/administrative reform.
Potential retrospective/administrative consequences:
The case arose via judicial review of a refusal decision. Depending on the final orders, administrators may face claims from previously excluded qualified cohabitants, raising questions about effective dates, proof requirements, and how to operationalise entitlement within a historically spouse/civil-partner framework.
Interaction with legislative trends post-O’Meara:
The Oireachtas responded to O’Meara with the Social Welfare (Bereaved Partners Pension and Miscellaneous Provisions) Act 2025 extending survivor benefits to “surviving qualified cohabitants” in social welfare law. This judgment increases the likelihood of a comparable alignment in occupational pension regulations—particularly where schemes already “recognise” cohabitation for stopping benefits.

4. Complex Concepts Simplified

Article 40.1 (equality before the law): It does not forbid all distinctions. It forbids irrational distinctions—those that are arbitrary, capricious, or not reasonably connected to a legitimate purpose.
“Pure equality” claim: A challenge based solely on unequal treatment (without linking to other constitutional rights). Courts are generally cautious here: they will not rewrite policy simply because inclusion seems “fairer”.
Occupational pension vs social welfare pension: Occupational pensions are tied to employment and often negotiated; social welfare benefits are generally universal/statutory entitlements funded through social insurance and public funds. Context affects the intensity of scrutiny, but does not remove constitutional limits.
Qualified cohabitant (2010 Act): A person in an enduring, intimate, committed cohabiting relationship meeting statutory duration thresholds (commonly five years unless there are dependent children, in which case two years), as confirmed here by a Circuit Court order.
Certiorari (judicial review remedy): An order quashing an unlawful administrative decision (here, the refusal to pay the survivor pension).
Presumption of constitutionality: Courts presume legislation (and closely related delegated schemes) is constitutional unless proven otherwise. The applicant bears the burden.
Why “scheme coherence” mattered: The decisive point was not an abstract comparison of marriage and cohabitation, but that the Scheme itself treated cohabitation as equivalent to marriage/civil partnership when it suited the Scheme (to stop or withhold payments), undermining the rationality of excluding cohabitants from eligibility.

5. Conclusion

Jones establishes a targeted but significant Article 40.1 principle for State-backed occupational pension schemes: where a scheme itself treats cohabitation as functionally equivalent to marriage/civil partnership for the purpose of withholding, ceasing, or regranting survivor benefits, it is constitutionally irrational to exclude qualified cohabitants from initial survivor eligibility on the basis of formal status alone.

Ferriter J. did not treat O’Meara as a template to be mechanically applied to occupational pensions. Instead, he used the Donnelly rationality framework to test the Scheme’s classification against the Scheme’s own inferred objective. Because the Scheme’s internal architecture already assumed cohabitation can meet the same “support” function as marriage/civil partnership, the exclusion of qualified cohabitants was held arbitrary and incompatible with Article 40.1.