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Widows/Survivors Pension Case 2

Question At Issue:

Backdating pension to cover the period of the appellant’s second marriage following the granting of a decree of civil nullity.

Background:

Following the death of his first wife, the appellant remarried. That marriage was the subject of a decree of civil nullity granted by the Circuit Family Court. In granting the decree, the Court ruled that the purported marriage was void, that is, that there was never a valid marriage. The appellant subsequently applied for a Widower’s (Contributory) Pension and sought to have any award made retrospective to 1994, when the scheme was first introduced. The Deciding Officer awarded pension from the date on which the couple ceased to live together, rejecting the appellant’s claim for retrospective payment on grounds that he had been cohabiting during the period in question.

Oral Hearing:

The appellant attended unaccompanied. He had made a written submission to the Department of Social and Family Affairs, indicating that he did not consent to his former wife being contacted in connection with the investigation of his claim. His wishes in this regard were respected by the Department and subsequently by the Appeals Officer.

The appellant submitted documentary evidence in support of his appeal, including letters from his legal representatives and extracts from medical reports. He argued that the marriage relationship had ceased at an early date when he became aware of psychiatric difficulties that his former wife experienced, causing him concern for the safety of his children. He stated that these difficulties persisted and that, ultimately, they agreed through their solicitors that she would leave the family home. He contended that the State, by registering and recognising a marriage that was subsequently annulled, effectively prevented him from exercising his right to Widower’s Pension when it was introduced in 1994. He argued further that as this was rectified by the granting of the decree of nullity, he should not be deprived of the pension on grounds of cohabitation since this resulted from what he asserted was the same wrongful registration of the marriage in the first place.

In reply to questions from the Appeals Officer, the appellant indicated that he and his former wife had lived together for a number of years. He confirmed that he owned the house and that the couple and their children lived there together in what was regarded as the family home. He acknowledged that he had maintained his former wife and her children, that there was a pooling of resources, and that they had joint bank accounts in the earlier part of the relationship. He indicated that he had also shared domestic duties and household chores, although this ceased to be the case as the relationship deteriorated. In terms of the stability of their relationship, medical evidence was submitted which referred to the difficulties experienced by the parties, as a consequence of which it was asserted that the relationship had little chance of surviving. On the question of their social relationship, the appellant contended that they did not socialise and that he had not acted as father to her children in the latter part of the relationship. In terms of a sexual relationship, the appellant offered no comment other than that the couple did not have a child of their own.

Consideration of the Appeals Officer:

The Appeals Officer noted the appellant’s objections to his former wife being consulted in relation to the breakdown of the marriage and her departure from the family home. He considered these reservations to be unfounded and noted that she was the only other person who could give first-hand evidence on the issues under appeal. He considered that the absence of such evidence presented difficulties in determining the question at issue.

In examining the question as to cohabitation, the Appeals Officer noted the evidence offered at the oral hearing in relation to the parties living together, their financial arrangements and sharing of household responsibilities. He examined the medical evidence offered and accepted that it indicated difficulties in the relationship. Nonetheless, he noted that the couple lived together during the years in question, in spite of the fact that the appellant’s former wife owned a house of her own. He noted the appellant’s assertions as to the absence of a social relationship and his comments in relation to their sexual relationship. He considered that while an admission of a sexual relationship might be indicative of cohabitation, it did not follow that in the absence of such a relationship, cohabitation did not exist.

The Appeals Officer considered that the evidence available indicated that the parties and their respective children had shared the same house and household amenities during the period at issue. He concluded that the couple had lived in a familial environment, sharing shelter, food, comforts, as well as financial resources and commitments. Accordingly, he concluded that they were cohabiting as husband and wife, and that the appellant was disqualified from receipt of Widower’s Pension during the period in question.

Outcome:

Appeal disallowed.

End of Document