Mhic Mhathuna and MacMhathuna v Ireland and Attorney General

• Jurisdiction: Ireland
• Judgment Date: 27 January 1989
• Date: 27 January 1989
• Docket Number: [1986 No. 2938P]
• Court: High Court

MacMathuna v. Attorney General

Una MhicMhathuna and Seamus MacMathuna

Plaintiffs

and

Ireland and The Attorney General

Defendants

[1986 No. 2938P]

High Court

Constitution - Statute - Validity - Equality - Family - Income tax allowances - Social welfare allowances - Comparison of unmarried mother with married couple - Single persons given tax allowance in respect of children - Married couples given no such allowance - Unmarried mother entitled to greater social welfare allowance than married mother living with her husband - Whether unequal treatment of married persons - Whether justifiable - Whether an attack on the institution of marriage - Whether married couple have a constitutional right to provide for their children from their own resources - Income Tax Act, 1967 (No. 6), s. 138A - Finance Act, 1986 (No. 13), s. 4 - Social Welfare (Consolidation) Act, 1981 (No. 1), s. 197 - Constitution of Ireland 1937, Article 40, ss. 1 and 3, Articles 41, 45.

Constitution - Statute - Validity - Severance - Tax allowance for children of married couple repealed and replaced with tax allowance for incapacitated children - Repeal of allowance for children impugned - Whether new allowance could stand if repeal of old allowance declared invalid.

Revenue - Income tax - Discrimination - Equality - Justification - Family - Tax allowance in respect of children given to single persons - No such allowance given to married couples - Whether distinction justified - Income Tax Act, 1967 (No. 6), s. 138A - Finance Act, 1986 (No. 13), s. 4 - Constitution of Ireland, 1937, Articles 40, 41, 45.

Section 138A of the Income Tax Act, 1967, inserted by s. 4 of the Finance Act, 1979, provides for a tax free allowance for single parents in respect of a child or children living with them.

Section 141 of the Income Tax Act, 1967, as originally enacted, provided for a tax free allowance in respect of the children of the taxpayer. This allowance was gradually whittled down and finally, by s. 4 of the Finance Act, 1986, it was abolished and replaced with a new allowance for incapacitated children. As the tax free allowance for children was eroded the social welfare children's allowances were increased.

Section 197 of the Social Welfare (Consolidation) Act, 1981, and the regulations adopted thereunder, provide for unmarried mother's allowances.

The plaintiffs, a married couple with nine children, challenged the validity of ss. 138A and 141 of the Act of 1967 and s. 197 of the Act of 1981 having regard to Articles 40 and 41 of the Constitution on the grounds that they, as a married couple, were treated less favourably than unmarried persons in similar circumstances. They further argued that the replacement of the children's tax free allowances in the original s. 141 of the Act of 1967 with a social welfare children's allowance infringed an unspecified personal right derived from Article 45, s. 2, sub-s. 1 of the Constitution of a person to provide for his family from his own means. They did not impugn the validity of the incapacitated child allowance created by the new s. 141 but argued that the repeal of the old s. 141 was ineffective.

Evidence was given on behalf of the plaintiffs contrasting their financial position with that of a married couple not cohabiting where both earned an income; with a married couple not cohabiting; and with an unmarried mother with nine children. It was furthermore sought to be demonstrated by reference to the consumer price index that the real value of the unmarried mother's allowance had increased but the real value of the plaintiffs' tax and social welfare allowances had diminished over the years.

Held by Carroll J., in dismissing the plaintiffs' claim, 1, that the jurisdiction of the court in a case where the validity of an Act of the Oireachtas is impugned is limited to declaring the Act to be invalid, if such be the case. The court has no jurisdiction to substitute any other provision.

Somjee v. Minister for Justice [1981] I.L.R.M. 324 considered.

2. That the court, in declaring a section of an Act to be unconstitutional, cannot delete part of the section where to do so would amount to an amendment.

Maher v. Attorney General [1973] I.R. 140 considered.

3. That the court in deciding the plaintiffs' case was confined to examining the facts and circumstances of the case before it and could not take account of assumptions or hypotheses outside the facts and circumstances of the case before it.

Madigan v. Attorney General [1986] I.L.R.M. 136 applied.

4. That the additional tax free allowance given to single parents by s. 138A of the Act of 1967 was justifiable having regard to the additional difficulties which single parents faced in bringing up children.

5. That the difference in the social welfare entitlements of the plaintiffs compared with unmarried mothers was justifiable by reference to the needs of the children in respect of whom the allowances were payable.

6. That the statutory provisions impugned by the plaintiffs were directed to providing tax and social welfare allowances in respect of the children of single and separated parents and were not such as to amount to an inducement not to marry. Accordingly, the plaintiffs had failed to show a clear breach by the State of its duty to guard the institution of marriage.

Murphy v. Attorney General [1982] I.R. 241 considered.

7. That having regard to the express provisions of Article 45 of the Constitution the court could not use the principles of social policy set out in that Article to review the constitutionality of legislation.

Murtagh Properties Ltd. v. Cleary [1972] I.R. 330 distinguished.

8. That the plaintiffs had not established the existence of a personal right to provide for their children from their own resources rather than to pay taxes and be paid social welfare allowances by the State.

9. That accordingly, the plaintiffs had not shown any of the impugned provisions to be invalid having regard to the provisions of the Constitution.

Cases mentioned in this report:—

Somjee v. Minister for Justice [1981] I.L.R.M. 324.

Maher v. Attorney General [1973] I.R. 140.

Madigan v. Attorney General [1986] I.L.R.M. 136.

Murphy v. Attorney General [1982] I.R. 241.

Murphy Properties Ltd. v. Cleary [1972] I.R. 330.

Plenary Summons.

By plenary summons issued on the 25th March, 1986, the plaintiffs instituted proceedings claiming:—

• 1. A declaration that s. 138A of the Income Tax Act, 1967, as amended by s. 4 of the Finance Act, 1985, was invalid having regard to the provisions of the Constitution and contrary to natural justice in so far as it excluded the plaintiffs from the benefit of income tax relief by virtue of their marital and/or parental status.

• 2. A declaration that s. 141, sub-s. 1A of the Income Tax Act, 1967, as amended by s. 2, sub-s. 1 of the Finance Act, 1982, was invalid having regard to the provisions of the Constitution and contrary to natural and constitutional justice in so far as it reduced the second plaintiff's tax free allowance by virtue of his marital and/or parental status.

• 3. A declaration that s. 197 of the Social Welfare (Consolidation) Act, 1981, as amended by s. 3 of the Social Welfare Act, 1985, and arts. 3, 4 and 7 of the Social Welfare (Social Assistance Allowance) Regulations, 1973, were invalid having regard to the provisions of the Constitution and contrary to natural and constitutional justice in so far as they denied the first plaintiff social welfare allowances by virtue of her marital and/or parental status.

A statement of claim was delivered on the 28th April, 1986. In their pleadings the plaintiffs further challenged the validity having regard to the provisions of the Constitution of ss. 2 and 8 of the Anti Discrimination (Pay) Act, 1974, but that claim was abandoned at the trial of the action.

The action was tried by the High Court (Carroll J.) on the 16th, 17th and 18th February, 1988.

Cur. adv. vult.

Carroll...