Award on the death of a social security beneficiary of a survivor’s pension to the surviving member of a de facto union
Constitutional protection of the family
Principle of equality
RULING Nº 195/03
9 of April of 2003
A cohabitee is not an heir and is only entitled to a "maintenance allowance". Although it is true that the basis and the nature of entitlement to a survivor's pension and to a "maintenance allowance" are distinct, there is a clear parallel between the situation as regards succession of a cohabiting partner - reduced to the right to claim a "maintenance allowance" from the estate - and the situation arising under the relevant rule, as regards the condition necessary to be awarded a survivor's pension. However, that difference in treatment cannot be regarded either as being without reasonable basis or arbitrary or as being based on a criterion which is insignificant, in the light of the intended legal effect: the legislature treats the situation of a married couple more favourably, not only because of the political objectives of providing an incentive to marry, but also as a consequence of the lack of a legal link, entailing rights and duties and a special dissolution procedure, between cohabitees.
Cohabitation, owing to its duration and to other circumstances (for example, the fact that the couple have children together), resembles the typical situation of spouses, but the requirement of a minimum life together of two years may be legally significant from the aspect of a number of legal effects. Furthermore, the question is whether cohabitation of more than two years, in conditions comparable to those of spouses, may be treated differently from marriage, as regards the grant of a survivor's pension under the social security scheme.
There are important differences that the legislature may regard as significant between the situation of two persons who are married and who have therefore voluntarily chosen to alter the legal status of their relationship - by a contract between two persons of different sex who claim to constitute a family by living together - and the situation of two persons who (although living together for more than two years "in conditions comparable to those of a married couple") have chosen to maintain de facto the relationship between them, without legally assuming and acquiring the obligations and rights associated with marriage.
What is at issue is the rule that the grant of a survivor's pension, in the event of the death of the beneficiary of social security, to a cohabitee depends, in particular, not only on that person's having lived with the deceased for more than two years, in conditions comparable to those of a married couple, but also on fact that he or she is unable to obtain a "maintenance allowance" from certain members of the deceased's family.
This different legal treatment cannot be regarded as being without any significant constitutional basis, and it is therefore impossible to conclude that the rule infringes the principle of equality laid down in Article 13 of the Constitution. It cannot be claimed, therefore, that this restriction of the right to a survivor's pension has as its consequence a breach of the duty not to leave unprotected, without reasonable ground, the family whose basis is not marriage - that is to say, at least as regards the points of the legal scheme which oppose the protection of its members and which cannot be accepted as an instrument of what may be policies of encouraging the family based on marriage.
In support of the argument that the rule is unconstitutional, it was expressly claimed that there was a violation of Article 26 of the Constitution, which establishes "other personal rights", that is to say, "rights to personal identity, to the development of personality, to civil capacity, to citizenship, to good name and to reputation, to image, to express views, to the protection of the intimacy of private and family life and to legal protection against any form of discrimination". None the less, the Court considered that the above-mentioned Article 26 is relevant only in so far as ensures the right "to legal protection against any form of discrimination" and that, for the purpose of evaluating the rule at issue, this constitutional parameter is, a fortiori, made subject to the requirements of the principle of equality, enshrined in Article 13 of the Constitution.
The constitutional context of this question is different from that recognised in the context of decisions pronounced on rules which made provision for a difference in treatment between married persons and cohabiting persons and which, in application of the constitutional prohibition on discrimination against children born out of wedlock (Article 36.4 of the Constitution), gave rise to a finding of unconstitutionality. In this case, the Court held that the rule in issue, in the part specifying that the grant of a survivor's pension in the event of the death of the beneficiary of social security, to the person cohabiting with the beneficiary, depends not only on cohabitation for more than two years, in conditions comparable with those of a married couple, but also on the fact that he or she was unable to obtain a "maintenance allowance" from certain members of the deceased's family, was not unconstitutional.
See, on the constitutional case-law on the rules on "cohabitation", Judgment 275/02 of 19.06.2002.