Right to a survivor’s pension in the case of de facto unions
Constitutional protection of the family
RULING Nº 614/05
9 of November of 2005
There are major differences, which legislation may regard as significant, between the situation of two married people, who have voluntarily chosen to modify their legal status, and the situation of two people of different sex who may have been living together for over two years "in conditions similar to those of married couples", but have, however, chosen to maintain a de facto situation, without assuming and acquiring on a legal basis the rights and obligations arising from marriage.
A significant example of differing legal treatment between the above situations is the conditions recognition of the right to a survivor's pension in the case of persons living together in a de facto union.
During a concrete review of constitutionality, the second chamber of the Constitutional Court, in Judgment no. 159/05, declared constitutional the rule relating to survivor's pension scheme where entitlement to a survivor's pension in the case of persons living together in a de facto union is dependent on whether the surviving partner is entitled to receive maintenance from the estate. An application was made to the plenary assembly of the Constitutional Court, in support of Article 79-D of the Constitutional Court Act, because, in delivering that judgment, the second chamber went against the third chamber, which, in Judgment no. 88/04 delivered on 10 February 2004, declared the same rule of the survivor's pension scheme unconstitutional (according to the rule in question, the award of a survivor's pension, in the event of the death of a social security recipient, to the person who had been cohabiting with him or her depends, in particular, not only on having lived together with the deceased for over two years in conditions similar to those of married couples, but also on being unable to receive "maintenance" from certain members of the deceased's family).
According to the Court, the opinion expressed in Judgment no. 159/05 (which, moreover, followed the guidelines laid down previously in Judgment no. 195/03) must be maintained and reiterated. On the one hand, from the point of view of the principle of equality, the difference in treatment cannot be regarded as unreasonable or arbitrary. On the other, with regard to a possible violation of the principle of proportionality, in comparing a legislative solution and the principle of proportionality it is important not only to take account of the seriousness or scale of the disadvantages caused to the individuals concerned, but also to know whether the broad outline of a legal regime is acceptable (i.e. whether it meets a constitutionally acceptable criterion), in the light of the aim pursued and the alternatives available, while constantly bearing in mind the wide discretion that must be given to the legislature to evaluate costs and benefits and choose alternatives in the light of the legislative policy goals laid down in the constitutional framework.
As may be seen from a comparison between the legislative solutions applied to the inheritance rights of a surviving spouse and the surviving partner in a de facto union, the treatment accorded to the surviving spouse is precisely one of the points of the legal regime where the legislature has chosen to treat marriage more favourably. This difference between the positions of a surviving spouse and the surviving partner in a de facto union, who may in fact be in competition after the death of the beneficiary, is in line with the continued encouragement given to the marriage-based family, which, from the point of view of the Constitution, is not open to criticism (the Constitution even places special emphasis on it).
This judgment gave rise to differences of opinion between the members of the plenary assembly of the Court, because two judges relinquished their jurisdiction to hear the case and four judges declared the rule in question unconstitutional.
With regard to the Constitutional Court's case-law on cohabitation, see Judgments 203/04 of 9 April 2003,and 88/04 of 10 February 2004, and the additional information on them.