State (Kenny) v Minister for Social Welfare

• Jurisdiction: Ireland
• Judge: Mr. Justice Egan
• Judgment Date: 15 December 1986
• Neutral Citation: 1986 WJSC-HC 986
• Court: High Court
• Docket Number: [1986 No. 478SS.],No. 478SS/1986
• Date: 15 December 1986

KENNY v. MIN SOCIAL WELFARE & AG

BETWEEN

THE STATE AT THE PROSECUTION OF PATRICIA KENNY

PROSECUTRIX

AND

THE MINISTER FOR SOCIAL WELFARE AND THE ATTORNEYGENERAL

RESPONDENTS

1986 WJSC-HC 986

No. 478SS/1986

THE HIGH COURT

Synopsis:

JUDICIAL REVIEW

Certiorari

Unmarried woman - Birth of child - Social assistance allowance - Entitlement of applicant - The applicant had been married but the marriage was dissolved by a decree of divorce - Section 197 of the Act of 1981 states that such allowance shall be paid to a woman who, inter alia, is "unmarried" and who has at least one qualified child residing with her - Sub-section 4 entitled the defendant Minister to make regulations which specify the circumstances in which a woman is to be regarded as an unmarried mother - Section 312(2) of the Act of 1981 provides that all instruments issued under replaced enactments, and in force at the commencement of that Act, shall continue in force as if made or issued under the Act of 1981 - Article 4 of the Regulations of 1973 states that a woman is to be regarded as an unmarried mother if, not being "or having been" a married woman, she is the mother of a child who has not been adopted - The applicant married in England in 1981 but separated from her husband immediately afterwards and returned to Ireland - The applicant gave birth to a child in 1983 - In 1984 the marriage was dissolved by a decree of divorce granted in Scotland - The applicant's application for such allowance was refused by the Department of the respondent Minister on the ground that she had been married and, therefore, was disqualified by the terms of article 4 of the Regulations of 1973 - The respondent Minister accepted that the applicant's marriage had been validly dissolved for the purposes of the application for such allowance - The applicant sought in the High Court an order of certiorari quashing the decision to refuse her application for such allowance - Held, in granting the relief sought by the applicant, that article 4 of the Regulations of 1973 was made ~ultra vires~ the Minister who made those Regulations - Social Welfare (Social Assistance Allowance) Regulations, 1973, art. 4 - Social Welfare (Consolidation) Act, 1981, ss.197, 312 - (1986/478 SS - Egan J. - 15/12/86) - [1986] IR 693

|The State (Kenny) v. Minister for Social Welfare|

SOCIAL SERVICES

Welfare

Benefits - Entitlement - Social assistance allowance - Unmarried woman with child - Section 197 of Act of 1981 states that the allowance shall be paid to a woman who, inter alia, is unmarried and who has at least one qualified child residing with her - Applicant married in England in 1981 but separated from her husband immediately and returned to Ireland - Applicant gave birth to a child in 1983 - The marriage was dissolved by a decree of divorce granted in Scotland in 1984 - Article 4 of Regulations of 1973 states that a woman is to be regarded as being an unmarried mother if, not being "or having been" a married woman, she is the mother of a child who has not been adopted - The applicant's application for payment of such allowance was refused on the ground that she was disqualified by the terms of article 4 - The applicant sought an order of certiorari quashing the decision to refuse the application for such allowance - The respondent accepted, for the purposes of the application for the allowance, that the applicant's marriage had been validly dissolved - Held, in granting the relief sought by the applicant, that article 4 of the Regulations of 1973 was made ~ultra vires~ the Minister who made those Regulations - Social Welfare (Social Assistance Allowance) Regulations, 1973, art.4 - Social Welfare (Consolidation) Act, 1981, ss.197, 312 - (1986/478 SS - Egan J. - 15/12/86) - [1986] IR 693

|The State (Kenny) v. Minister for Social Welfare|

Citations:

CASSIDY V MIN INDUSTRY & COMMERCE 1978 IR 297

MIXNAM'S PROPERTIES LTD V CHESTER UDC 1964 QB 214

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S197

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S312(2)

SOCIAL WELFARE (SOCIAL ASSISTANCE ALLOWANCES) REG 1973 SI 190/1973

SOCIAL WELFARE (SOCIAL ASSISTANCE ALLOWANCES) REG 1973 SI 190/1973 S4

SOCIAL WELFARE ACT 1973 S8

THYNNE V THYNNE 1955 3 AER 129

1 Judgment of Mr. Justice Egandelivered the 15th day of December 1986.

2 The Prosecutrix in this case intermarried with one J.D. on the 4th July, 1981 at a Roman Catholic Church in Norfolk, England. She returned to Ireland on the day following the said wedding and she states that the marriage was never consummated.

3 On the 27th November 1984 in the Sheriff Court at Glasgow the Sheriff pronounced a decree divorcing the said J.D. from the Prosecutrix. The Prosecutrix states that the said J.D. had lived practically all his life in Scotland, was a British Citizen, and at the time of the said Divorce resided in Scotland and intended to reside there permanently. There was no provision for alimony.

4 No argument was advanced by the Respondents to suggestthat Irish Law would not recognise the validity of the said divorce and I am assuming, therefore, that its validity would be recognised. It would then appear to follow that the Prosecutrix lost her marriage status consequent on the said divorce.

Thynne .v. Thynne 1955 3 A.E. P. 129

5 The Prosecutrix states that in the month...