THE HIGH COURT  
JUDICIAL REVIEW  
[2021] IEHC 202  
[Record No. 2020/398 JR]  
IN THE MATTER OF THE CONSTITUTION OF IRELAND  
AND IN THE MATTER OF  
THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003  
BETWEEN  
PATRICK MCGOVERN  
APPLICANT  
AND 
CHIEF APPEALS OFFICER, MINISTER FOR EMPLOYMENT AFFAIRS AND SOCIAL 
PROTECTION, IRELAND, AND THE ATTORNEY GENERAL  
RESPONDENTS  
JUDGMENT of Ms. Justice Miriam O’Regan delivered on the 19th day of March, 2021.  
1. Issues  
1.1 The issue arising herein is as to whether the appli cant is entitled to Widower’s 
(Contributory) Pension and the Widowed or Surviving Civil Partners Grant paid in 
accordance with Chapter 18 and Chapter 21 of Part 2, respectively, of the Social Welfare 
Consolidation Act 2005 (the 2005 Act), under Irish legis lation, or under the Constitution, 
or under European Union Law, in the circumstances which pertain in the within matter.  
1.2 The decision of the Appeals Officer of 31 March 2020 refusing the applicant such a 
pension and grant is the subject matter of an ap plication for certiorari . 
1.3 By order of 22 June 2020 the applicant was afforded leave to maintain the within judicial 
review proceedings based on the matters set forth in the statement required to ground 
the application for judicial review (the statement).  In addition to the order f or certiorari  
the statement seeks a declaration that:  
(a) the first or second named respondents exceeded their jurisdiction in making a 
determination that the applicant was not the legal spouse of inter alia , Pauline 
Carbery McGovern (Ms. Carbery) who die d on 5 October 2016;  
(b) the applicant ought to be entitled to a presumption that his marriage was valid;   
(c) the decision on 31 March 2020 is contrary to EU law, the principle of 
proportionality, or assimilation of facts and events under Regulation 883/ 2004, 
and/or by analogy based on that regulation;   
(d) the provisions of the 2005 Act unlawfully interfere with the applicant’s property 
rights and are contrary to Articles 40 and 43 of the Constitution by treating him 
unequally before the law;  
(e) or in the alternative, a declaration that there is an unconst itutional lacuna in the 
law as a consequence whereof the applicant should be treated as a widower for the 
purposes of the 2005 Act;  
(f) the asserted discrimination in the 2005 Act is incompatible with the European 
Convention on Human Rights Act 2003; and,  
(g) the first named respondent failed to exercise her discretion properly and/or fettered 
her discretion by failing and/or refusing to refer the matter to the High Court 
pursuant to s.306 of the 2005 Act.   
2. Background  
2.1 The applicant is an Irish citi zen and retired school teacher and resides in Co. Kildare.  
2.2 The applicant married Elizabeth Casey on 2 August 1982 in Johnstownbridge, Co. Kildare.   
2.3 “… a Decree of Divorce was granted by the High Court of Justice, Principal Registry of the 
Family D ivision, London, on or about 13 July 1994” (See para. 5 of the grounding affidavit 
of the applicant).   
2.4 On 2 August 1994 the applicant married Pauline Carbery at the Registry Office in Belfast 
and the paperwork in respect thereof suggest that both the applicant and Ms. Carbery had 
a residential address at 42 Sandhurst Drive, Belfast at that time.  
2.5 On 6 July 1999 the applicant and Ms. Casey were granted a divorce pursuant to s.5(1) of 
the Family Law (Divorce) Act 1996 in the Circuit Court, Naas, Co. K ildare.   
2.6 The parties secured a church annulment of the marriage of 2 August 1982 on 19 May 
2000.  
2.7 Ms. Carbery died on 5 October 2016, and on 24 November 2016 the applicant made an 
application for the Widowed or Surviving Civil Partner Grant, with a n application made on 
12 January 2017 in respect of the Widowers Contributory Pension.   
2.8 The claim of the applicant in respect of both the pension and the grant was disallowed on 
the basis that the divorce from the applicant’s first wife, Ms. Casey was  not recognised as 
valid in Ireland.  Notwithstanding a review and an appeal of such status, ultimately a 
decision was made by the Chief Appeals Officer on 31 March 2020 to the effect that the 
applicant was not entitled to either the grant or the pension o n the basis that his divorce 
from Ms. Casey was not recognised in this jurisdiction.  
2.9 The applicant points to the fact that between August 1994 and October 2016, the 
applicant and Ms. Carbery were treated by the Revenue Commissioners as a married 
couple . 
2.10 It had been suggested to the applicant on a number of occasions during the course of the 
appeal and review above, that he might process an application pursuant to s.29 of the 
Family Law Act 1995 in the Circuit Court, seeking to have the divorce he s ecured in 
London declared valid in this jurisdiction.  However, the grounding affidavit of the 
applicant merely indicates that he was advised that this would be a futile exercise.   
2.11 During the course of the oral hearing the applicant requested the fir st named respondent 
to refer the matter for determination by the High Court pursuant to s.306 of the 2005 Act, 
however, such a referral was refused.  It is common case that a referral under s.306 is 
within the privilege of the Appeals Officer rather than t he applicant.  
3. Exhausting statutory remedies  
3.1 Under s.318 of the 2005 Act it is provided that the Chief Appeals Officer may at any time 
revise any decision of an Appeals Officer where it appears to the Chief Appeals Officer 
that the decision was err oneous by reason of some mistake having been made in relation 
to the law or the facts.  In this regard the respondent argues that this was a portion of 
the statutory process available to the applicant to pursue as opposed to proceeding with 
an application for judicial review.   
3.2 Furthermore, under s.327 it is provided that any person who is dissatisfied with the 
decision of the Appeals Officer or the revised decision of the Chief Appeals Officer may 
appeal that decision or revised decision as the case ma y be to the High Court on any 
question of law.  The respondent argues that such an application would involve the 
primary argument made before this Court to the effect that a reference to the Court of 
Justice of the European Union (CJEU) is required under A rticle 267 of the Treaty on the 
Functioning of the European Union (TFEU). The question suggested by the applicant is as 
to whether or not the “event” in the United Kingdom was to be recognised under the 
principle of assimilation of facts and events as prov ided for by Regulation 883/2004, 
whether directly or by analogy.  
3.3 Ultimately the decision to apply by way of judicial review as opposed to the statutory 
appeal process would have had significant time implications in that the statutory appeal 
process mus t be made within a period of 21 days whereas judicial review applications 
must be processed within three months.  
3.4 Both parties rely on the Supreme Court decision in Petecel v. The Minister for Social 
Protection  [2020] IESC 25.  In the judgment of O’Mall ey J. at para. 99 it was recorded 
that the existence of a right of appeal is not an automatic bar to seeking judicial review 
although is a matter to be taken into account in the exercise of the discretion of the court.  
In the case before the Supreme Court  the first question that arose was as to whether or 
not the statutory appeal process could deal only with the legal merits of a claim for 
benefit, or whether it could deal with the validity of the legislation. There the Court was 
satisfied that the Appeals  Officer did not have competence to determine the invalidity of 
an instrument although such officer could interpret national law by reference to EU law.  
Furthermore, it was recognised that an appeal to the High Court in such a case could 
result in a quest ion being referred to the CJEU.   
3.5 Petecel v. The Minister for Social Protection  held that the statutory process could not 
involve a determination of the constitutionality of the legislation.  However, in this regard 
the respondent argues that the appli cant’s argument on constitutionality is superficial, 
brief and essentially unsustainable.     
* * * *  
3.6 Notwithstanding that I accept the respondent’s argument as to the minimal engagement 
by the applicant with the Constitution, and the argument that par ties should be 
encouraged to follow the statutory scheme laid down by the Oireachtas, nevertheless, it 
does appear from the foregoing that consequences of choosing judicial review as opposed 
to proceeding with the statutory process should be taken into acc ount in the exercise of 
judicial discretion as opposed to resulting in any outright refusal to deal with the issues 
raised.  
4. Fettering of discretion  
4.1 The applicant argues that the Appeals Officer fettered her discretion in failing to refer the 
issues raised to the High Court pursuant to s.306 of the 2005 Act aforesaid.  The basis of 
such argument is the refusal of the respondent to accede to the request of the applicant 
to refer the matter to the High Court together with the content of para. 51 of Petecel v. 
The Minister for Social Protection aforesaid, which states:  
 “Counsel for the appellant asserts, without contradiction, that s.306 (like its 
predecessors in social welfare legislation dating back some 30 years) has never 
been utilised.”  
4.2 The request is dealt with in the replying affidavit of Joan Gordon on behalf of the 
respondents of 1 December 2020.  In para. 24 the request to refer the matter under 
s.306 is mentioned and it is stated that the Appeals Officer raised this issue with the 
depon ent (the Chief Appeals Officer).  It is stated:  
 “Having considered the issues, I did not consider that it was necessary or 
appropriate to refer any question to the High Court for determination.  I considered 
that the question before the Appeals Officer co uld be determined in accordance with 
the statutory provisions…I was also of the view that, if the Applicant was 
dissatisfied with the decision of the Appeals Officer, the 2005 Act provided remedies 
for him and other mechanisms to challenge that decision.”  
* * * *  
4.3 I accept the respondent’s argument that based on para. 24 aforesaid the respondent dealt 
with the application under s.306 on the basis of the facts of the case and accordingly, 
whatever about the possibility of a fettering of discretion in past  cases, there is no 
sufficient evidence before this Court to suggest that the respondent’s discretion was 
fettered.  
5. Eligibility  
5.1 Eligibility for the pension and the grant is set out in s.123 of the 2005 Act where “spouse” 
is defined as:  
 “in relation  to a widow or widower who has been married more than once, refers 
only to the widow’s or widower’s last spouse and for this purpose that last spouse 
shall be read as including a party to a marriage that has been dissolved, being a 
dissolution that is reco gnised as valid in the State.”  
5.2 In LD v. The Chief Appeals Officer & Ors . [2014] IEHC 641, Peart J. stated at para. 38 
that inter alia , “The [2005] Act should in my view be interpreted (sic) as widely as the 
words reasonably permit in order to reflect t he permissive nature of the legislation….”.  At 
para. 40 Peart J. considered that the provisions under scrutiny should be given a 
purposive interpretation, yet one that is fully consistent with the clear words used by the 
Oireachtas.  
5.3 In NAMA v. Commiss ioner for Environmental Information  [2015] IEHC 51 it was 
considered that the term “include” may enlarge or extend the meaning of a class, or be 
exhaustive.   
5.4 The applicant argues that having regard to the decision of Peart J. in LD v. The Chief 
Appeal s Officer  aforesaid, and the potential for the word “including” as it appears in s.123 
of the 2005 Act in the definition of a spouse, as enlarging or extending eligibility, the said 
s.123 definition should be read as including a party such as the applicant  to “a marriage 
that has been dissolved”.  
* * * *  
5.5 I cannot agree that such an understanding of the definition would be fully consistent with 
the clear words used by the Oireachtas in the instant circumstances, notwithstanding that 
obviously in some cir cumstances “including” may well enlarge or extend a class of 
persons that might benefit.  In the instant circumstance it appears to me that the word 
“including” is exhaustive by reason of the condition attached thereto in the wording of the 
provision, name ly “…being a dissolution that is recognised as valid in the State”.  
5.6 I am satisfied that “being a dissolution that is recognised as valid in the State”, refers to 
the preceding words “including a party to a marriage that has been dissolved”, and 
therefo re it is only a party to a marriage that has been dissolved where that dissolution is 
recognised as valid in the State, who is included in the definition of spouse in s.123 of the 
2005 Act.  
6. Need for a reference under Article 267  
6.1 Counsel on behalf of  the applicant suggests that it is inevitable that a reference to Europe 
will have to be made.  The fact that he cannot rely on any particular case to identify that 
under European law Ireland is obliged to recognise the applicant’s divorce in another 
Membe r State (the UK), he says demonstrates the need for a reference.  It is argued that 
the applicant has a substantial chance of successfully securing a finding that his divorce is 
entitled to recognition within this jurisdiction, notwithstanding that he acce pts that under 
domestic law (in particular having regard to s.5(3) of the Domicile and Recognition of 
Foreign Divorces Act 1986 and the judgment of the Supreme Court in H v. H  [2015] IESC 
7) it is not possible to secure recognition of his divorce without c alling in aid European 
law.    
6.2 It is argued that the European courts will uphold the applicant’s divorce as being 
recognised under European law on the basis of one or both of the following arguments:  
(a) Ireland should have accepted as valid the UK di vorce by analogy having regard to 
the terms of Regulation 2201/2003 (Brussels II) just as in the case of Coman  Case 
C-673/16, a judgment of the CJEU on 5 June 2018, Regulation 883/2004 was 
applied by analogy; and/or,  
(b) at the time the applicant secured h is divorce in the UK he was exercising his free 
movement to another Member State, accordingly under Regulation 883/2004 the 
facts and events that occurred in the UK (the applicant’s divorce) should be 
accepted in this jurisdiction under Article 5 of Regula tion 883/2004.  
6.3 Both parties rely on the regulations and jurisprudence aforesaid to support their 
respective diametrically opposed arguments.  As aforesaid the applicant suggests 
Regulation 2201/2003 should apply by analogy and in addition suggests that  in any event 
Regulation 883/2004, Article 5 thereof applies insofar as facts and events in the UK are 
concerned. The applicant argues that when he went to the UK to secure the divorce he 
was exercising his right to freedom of movement. He further suggests  that by virtue of 
Regulation 2 of the State Pension Credit Regulations 2002, considered in the UK Supreme 
Court decision of Patmalniece v. Secretary of State for Work and Pensions  [2011] UKSC 
11, once an Irish citizen enters the UK such citizen immediatel y has an entitlement to a 
state pension.   
6.4 Ultimately, it is argued that notwithstanding the brevity of time that the applicant might 
have spent in the UK, facts and events that occurred therein, being the applicant’s 
divorce, are entitled to recogniti on in this State without looking behind the decree of 
divorce.  
6.5 On the other hand, the respondent argues that:  
(a)  under the terms of Regulation 2201/2003 same is a prospective rather than 
retrospective piece of legislation;  
(b) Article 5 of Regulatio n 883/2004 manifestly does not apply to the applicant’s 
divorce;  
(c) the respondent inquires as to what evidence there is that the applicant was 
exercising his free movement right; and,  
(d) the case of Coman  and indeed Regulation 883/2004 apply to genuine EU citizens 
exercising their right to move and reside in another  
6.6 It appears to me significant that when the Court inquired of the applicant as to what 
evidence was before the Court to the effect that the applicant travelled at all to the UK to 
secure his divorce, the response was to the effect that the applicant was clearly present in 
Belfast at the date of his marriage to Ms. Carbery.  Clearly such a response is most 
unsatisfactory. Being present in Belfast for his marriage on 2 August 1994 does not 
advance at all the applicant’s argument vis-à-vis being in the UK either at the date of 
application for, or securing of, the decree of divorce of 15 July 1994.  
6.7 Regulation 2201/2003 – Brussels II  
6.7.1 Regulation 2201 of 2003, known as Brussels II, came into force on 1 August 2004 and 
was introduced for the purposes of dealing with the jurisdiction on recognition and 
enforcement of judgments in matrimonial matters within the EU.  Under Recital 10 it is 
provided that the regulation is not intended to apply to matters relating to social security 
nor to other questions linked to the status of a person.  Furthermore, maintenance 
obligations are excluded under Recital 11.  Under Recital 23 reference is made to  
judgments in the field of family litigation being automatically recognised throughout the 
Union without any intermediate proceedings or grounds for refusal or enforcement.   
6.7.2 Under Article 3 thereof, in matters relating to divorce, jurisdiction shall  lie with the courts 
of the Member State where the spouses are habitually resident inter alia , for at least a 
year or in certain circumstances for at least six months. Under Article 3(1)(b) jurisdiction 
shall lie in the case of the United Kingdom and Irela nd in the Member State of the 
domicile of both spouses.   
6.7.3 Article 21 provides that a judgment given in a Member State shall be recognised in the 
other Member State without any special procedures being required.  
6.7.4 Article 22 provides that a judgm ent relating to divorce shall not be recognised if such 
recognition is manifestly contrary to the public policy of the Member State in which 
recognition is sought.   
6.7.5 Under Article 64 it is provided that the provisions of the regulations shall apply o nly to 
legal proceedings instituted and documents formally drawn up after its date of application 
in accordance with Article 72.  
6.7.6 In the grounding affidavit of the applicant of 17 June 2020 the only reference to the 
details of the divorce in the UK is  set out at para. 5 and consists of the following 
statement:  
 “I say that a Decree of Divorce was granted by the High Court of Justice, Principal 
Registry of the Family Division, London, on or about 13 July 1994.”  
6.7.7 It is apparent from the replying aff idavit of Joan Gordon, Chief Appeals Officer, of 1 
December 2020, that initially, in the applicant’s application for the pension and grant, the 
applicant denied having been divorced previously.  Subsequently he was required to lodge 
the certificate of his marriage to Ms. Carbery and when same was lodged it was apparent 
therefrom that he was recorded as being a divorcee and was subsequently required to fill 
out the details in respect of same.  The applicant at that time believed that the divorce he 
obtained was secured in Belfast and there was a delay as Belfast authorities could not 
locate the divorce.  It subsequently became apparent that he was divorced in London.  In 
his revised application a query was raised as to the country in which he was living when 
the divorce or dissolution proceedings started and his answer was Ireland.   
6.7.8 Given the totality of the foregoing it appears to me that there is no evidence before the 
Court to suggest that the applicant travelled to any portion of the UK either at th e date of 
making the application for divorce, which is not disclosed, or at the date of securing the 
decree of divorce.   
6.8 Regulation 883/2004  
6.8.1 Regulation 883/2004 was introduced as per Recital 1 thereof for the purpose of 
coordination of national social security systems and under Recital 4 it is stated that it is 
necessary to respect the special characteristics of national social security legislation and 
to draw up only a system of coordination.   
6.8.2 Under Recital 8 it is provided that the gener al principle of equal treatment is of particular 
importance for workers who do not reside in a Member State of their employment, 
including frontier workers.  
6.8.3 Recital 9 records that the Court of Justice has on several occasions given an opinion on 
the possibility of equal treatment of benefits, income and facts, and that this principle 
should be adopted explicitly and developed, while observing the substance and spirit of 
legal rulings.   
6.8.4 Under Recital 14 it is provided that the objectives must b e attained by aggregating all the 
periods taken into account under the various national legislation for the purpose of 
acquiring and retaining the right to benefits and of calculating the amount of benefits, and 
by providing benefits for the various catego ries of persons covered by the regulation.   
6.8.5 Under Recital 17a it is provided that once the legislation of a Member State becomes 
applicable, conditions for affiliation and entitlement to benefits should be defined by the 
legislation of the competent  Member State while respecting community law.   
6.8.6 Under Recital 32 the purpose of the regulation is for fostering mobility of workers in the 
various Member States, and therefore it is stated that it is necessary to ensure closer and 
more effective coor dination between the unemployment insurance schemes and the 
employment services of all Member States.  
6.8.7 Under Article 2 the regulation will apply to nationals of a Member State residing in a 
Member State who are or have been subject to the legislation  of one or more Member 
States.   
6.8.8 In this regard the applicant laid emphasis on Article 2 as being applicable to the applicant 
as he is residing in Ireland but subject to legislation in the UK vis -à-vis the divorce.   
6.8.9 Under Article 5 it is provi ded that where under the legislation of the competent Member 
State, the receipt of social security benefits and other income has certain legal effects, 
the relevant provisions of that legislation shall also apply to the receipt of equivalent 
benefits acqui red under the legislation of another Member State or to income acquired in 
another Member State.  Under Article 5(b) it is provided that where under the legislation 
of the competent Member State, legal effects are attributed to the occurrence of certain 
facts or events, that Member State shall take account of like facts or events occurring in 
any Member State as though they had taken place in its own territory.   
6.8.10  The respondent argues that it is clear that under the 2005 Act all nationals of Ireland 
and other Member States are treated the same. If such individual’s marriage is not 
recognised no benefits will be given in Ireland whether of another Member State or a 
national of Ireland. It is said this is consistent with Article 5 of Regulation 883/2004 .   
6.9 Coman , Case C -673/16  
6.9.1 In Coman , Case C -673/16, the applicant held Romanian and American citizenship and his 
partner was an American citizen.  The applicant took up residence in Brussels in May 
2009. The parties married in Brussels on 5 Novembe r 2010.  Following the applicant’s 
cessation of work in Brussels in March 2012 the parties sought information as to how the 
applicant and his family could reside lawfully in Romania for more than three months.  
The Romanian government indicated that they c ould not so reside as Romania did not 
recognise same sex marriages.   
6.9.2 In its judgment the Court referred to established case law that Directive 2004/38 is to 
facilitate the exercise of the primary and individual right to move and reside freely within  
the territory of Member States, which is a right conferred directly on citizens of the Union 
by Article 21(1) of the TFEU.  At para. 19 of the judgment it was noted that Article 3(1) of 
Directive 2004/38 applies to all Union citizens who move to or reside  in a Member State.  
The Court acknowledged that the Directive did not confer a derived right of residence on 
Mr. Coman’s partner although it was also noted that the Court had previously 
acknowledged that in certain cases an otherwise non -eligible party wo uld be accorded 
such a right on the basis of Article 21(1) aforesaid.   
6.9.3 In para. 24 of the judgment the Court noted that in particular the Court has held that 
where during the genuine residence of a Union citizen, the citizen’s family may acquire 
the grant of a derived right of residence. The Court was satisfied that Directive 2004/38 
should be applied by analogy to the situation at hand, and the answer to the first question 
therefore was that in the situation in which a Union citizen has made use of his freedom 
of movement by moving to and taking up genuine residence in a Member State other than 
that of which he is a national, and whilst there has created or strengthened family life, 
Article 21(1) of the TFEU must be interpreted as precluding the Memb er State of which 
the citizen is a national from refusing to grant third country nationals a right of residence.   
6.9.4 At para. 36 the Court was satisfied that a Member State could not rely on its national law 
as justification for refusing to recognise i n its territory for the sole purpose of granting a 
derived right of residence, the marriage concluded in another Member State in accordance 
with the law of that State.  At para. 37 it is stated:  
 “Admittedly, a person’s status, which is relevant to the ru les on marriage, is a 
matter that falls within the competence of the Member States and EU law does not 
detract from that competence.”  
6.9.5 At para. 45 it was recorded that the Court finds that the obligation of a Member State to 
recognise a marriage for t he sole purpose of granting a derived right of residence to a 
third country national does not undermine the institution of marriage in the first Member 
State which is defined by national law and falls within the competence of the Member 
States.  It is conf ined to the obligation to recognise such marriages, concluded in another 
Member State in accordance with the law of that State, for the sole purpose of enabling 
such persons to exercise the rights they enjoy under EU law.   
6.9.6 Paragraph 46 provides ther efore:  
 “Accordingly, an obligation to recognise such marriages for the sole purpose of 
granting a derived right of residence to a third -country national does not undermine 
the national identity or pose a threat to the public policy of the Member State 
concerned.”  
6.9.7 The applicant relies on the above decision to support his contention that the divorce 
obtained in the UK and the subsequent marriage to Ms. Carbery are entitled to 
recognition in this jurisdiction.  The respondent counters that the case clearly relates to 
the genuine exercise of a right to move and reside in another Member State and a 
marriage conducted in accordance with the laws of that Member State will be recognised 
in another Member State solely for the purposes of granting a ri ght of residence.  
6.10 Decision on reference under Article 267  
6.10.1  I am satisfied that there is no basis for the applicant’s argument that Regulation 
2201/2003 would be applicable to the applicant for the year in or about 1994, having 
regards to the ter ms of the regulation cited above.  
6.10.2  I am satisfied that having regard to the totality of the case, as opposed to the portions 
thereof identified by the applicant, Coman  supports the respondent’s argument that an 
assessment under the 2005 Act is within  the competence of Ireland to determine, so that 
the relevant pension and grant will only be payable to a party who has been divorced 
where that divorce is entitled to recognition within the jurisdiction of Ireland.  
6.10.3  No evidence has been adduced by t he applicant to establish that the divorce obtained in 
the UK was in fact in compliance with UK law and indeed the answer given in his 
application form for the pension and grant as identifying that he was residing in Ireland at 
the date of application for the grant is not consistent with any compliance with UK 
legislation.  Furthermore, no other evidence has been adduced by the applicant, assuming 
he did travel to the UK in connection with securing the divorce in 1994, that the applicant 
actually moved to a nd resided in the UK or was otherwise genuinely availing of his rights 
under Article 21 of the TFEU.  The protocol to the common travel area is also of no 
assistance to the applicant given the lack of information disclosed to the Court as to any 
movement o f the applicant to the UK prior to the issuing of the 1994 divorce.   
6.10.4  Accordingly, the applicant’s argument to the effect that he has a strong case that if 
there was a reference to the European Courts he would secure an order obliging Ireland 
to rec ognise his divorce obtained in the UK in this jurisdiction, for the purpose of securing 
the grant and pension, is effectively unsustainable.   
7. Constitutionality of the 2005 Act  
7.1 This heading of claim is based on two issues namely:  
(1) there is an unl awful lacuna in Irish legislation insofar as his divorce and remarriage 
in another Member State cannot presently be recognised under national law; and,  
(2) he is being discriminated against because a national of a third country who might 
have obtained a d ivorce, will have his or her divorce recognised in this jurisdiction 
without question for the purpose of the pension and grant herein, whereas because 
the applicant is a citizen of Ireland his divorce and remarriage is not recognised for 
the purpose of the  2005 Act.  
* * * *  
7.2 I am satisfied that the applicant has not demonstrated any unlawful lacuna relative to his 
circumstances.  The applicant secured a recognised divorce in Ireland in 1999, however, 
notwithstanding he was free to do so, the applicant di d not marry Ms. Carbery thereafter 
prior to her death. The applicant therefore had some seventeen years to arrange his 
family circumstance following his divorce from his first wife when he could lawfully marry 
Ms. Carbery, but choose not to do so.   
7.3 The applicant has not demonstrated any discrimination against him.  It is clear from the 
provisions of s.123 of the 2005 Act that in relying on a marriage following a divorce for 
the purposes of securing the pension and grant, that divorce must be recognised  in this 
State, and therefore the provisions apply as equally to the applicant as any third party 
from another Member State.  
8. De facto family  
8.1 The applicant argues that his de facto family should be recognised in this jurisdiction as 
indeed it was by the Revenue Commissioners, and he should not be discriminated against 
by reason only of the fact that he was not lawfully married as recognised in this 
jurisdiction to Ms. Carbery.  
8.2 The applicant relies on the judgment of the UK Supreme Court in McLaugh lin, a judgment 
of Lady Hale of 30 August 2018 involving the payment, after the death of one parent for 
the benefit of children.  In that decision the UK Supreme Court held that there should be 
no disparity as between children of a marriage and children of  cohabitees.   
8.3 Reference was made in McLaughlin  to the European Court of Human Rights (ECtHR) 
judgment of Shackell v. United Kingdom  (Application no. 45851/99, 27 April 2000), where 
the Court denied the claim of Widow’s Benefit to an unmarried survivin g partner and held 
that discrimination as between the survivor of an unmarried partner and a married 
partner was justified as marriage conferred a special status, and the lack of public 
contract between cohabitees meant that the situation was not comparabl e to a widow.  
McLaughlin  also noted that a Strasburg court allows a wide margin of appreciation to 
Member States, in or about justification of a different treatment in law.  In McLaughlin  the 
allowance was payable as it was held to be payment in respect o f children and therefore 
the marital status of the parents was irrelevant.  
* * * *  
8.4 The payments being considered in this judgment are clearly for the benefit of a surviving 
spouse or civil partner, with additional sums payable if there is a dependant child. Such 
payment is readily distinguishable from the payments referred to in McLaughlin . 
8.5 In Shackell v. United Kingdom , the Court, consistent with a like status in Ireland (as per 
paras. 6 -8 of the affidavit of Joan Gordon of 1 December 2020) recogn ised the validity of 
a difference in treatment of parties to a marriage (or other civil contract), to the 
treatment of parties without such public contract.  
8.6 I am satisfied that neither McLaughlin nor Shackell v. United Kingdom  are of any support 
at all to the applicant in suggesting that his de facto family status must be recognised by 
the Irish State for the purpose of determining that the applicant is eligible to the claimed 
pension and grant.  
9. Conclusion  
9.1  In all of the circumstances the appli cant has not demonstrated his entitlement to any of 
the reliefs claimed, and I am further satisfied that there would be no benefit in making a 
reference to the CJEU. All of the reliefs claimed by the applicant are therefore refused.