Victims of domestic partner violence may collect the widow's pension

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The Social Chamber of the Supreme Court has established in a ruling that, as long as the remaining legally required requirements are met, the woman who, due to gender violence, was not already married, has the right to a widowhood pension. nor did she live with her partner at the time of her death, thus interpreting article 174.3 of the General Social Security Law of 1994 (current article 221.1 LGSS of 2015) with a gender perspective.

The High Court does not consider it reasonable to require the requirement of coexistence between the members of the couple when gender violence occurs, where the protection of the woman is precisely what obliges the cessation of that coexistence.

The Supreme Court dismisses an appeal for the unification of doctrine raised by Social Security against a ruling of

, of March 26, 2018, which agreed with a woman and recognized her right to collect the widow's pension with effect from the date of death in a traffic accident, in 2012, of who had been his de facto partner and with whom he had ceased living together in 2000 due to gender violence.

They both had a son together in 1996, who has a recognized orphan's pension.

The ruling of the Catalan Supreme Court established that the provision contained in article 174.2 of the LGSS for women victims of gender violence at the time of legal separation or divorce should be applied by analogy to de facto couples.

The Catalan court considered it proven that the cessation of coexistence was caused by gender violence, and that the woman met the rest of the legal requirements to be entitled to a pension.

"You have the right"

For its part, Social Security, in its appeal, indicated, among other arguments, that article 174.3 of the LGSS of 1994 does not mention gender violence nor does it exempt, in those cases, from the requirement of the existence of union with the deceased at the time of his death or the necessary uninterrupted coexistence of not less than five years.

The Social Security presented as a contrasting sentence to that of the Catalan Supreme Court, to unify doctrine, one

that denied the right to a widowhood pension of common-law couples to a woman who, because she had suffered gender violence, did not he was no longer a de facto union nor did he live with the deceased.

The Supreme Court confirms the judgment of the Catalan Supreme Court by interpreting "with a gender perspective", as it emphasizes, article 174.3 of the LGSS of 1994, which establishes that the right to a widow's pension "is the one who is united to the deceased at the time of his death, forming a de facto couple ", and specifically requires" a stable and notorious coexistence immediately upon the death of the deceased and with an uninterrupted duration of not less than five years ".

For the High Court, "this logical need for there to be, in general, a coexistence between the components of the de facto union, is not reasonable to be required in cases of gender violence suffered by the woman who is a member of that union. Indeed, in these cases in which the other member of the common-law partner exercises gender violence against the woman with whom he lives, the protection of this woman is precisely what it requires is, among many other things, that the coexistence with a view to preventing him from continuing to suffer a situation of violence ".

"In these cases coexistence is not only impossible and undesirable, but must be avoided at all costs, so that, if it is demanded and imposed as a requirement, the primary and main purpose of protecting the victim from the violence would not be achieved. Gender violence. And it must be remembered that coexistence is broken, not exactly by the free will of the woman who is part of the de facto union, but because the violence exerted on the latter makes coexistence impossible, "the magistrates emphasize.

Equality between marriages and domestic partners

The Supreme Court further emphasizes that "if separated and divorced women who are victims of gender violence can access the widow's pension, the same must be possible with women who form de facto unions and who are also victims of gender violence. ".

Article 174.2 of the LGSS indicates the right to a widow's pension for women who, not being creditors of compensatory pension, can prove that they were victims of gender violence at the time of separation or divorce.

In relation to domestic partners, the Chamber insists that "the occurrence of gender violence must exempt the fulfillment of certain requirements that, not only are meaningless when there is such violence (in our case, the requirement of coexistence in the moment of death despite the fact that coexistence had to and had to cease due to the violence exercised against the woman), but demanding that coexistence in such circumstances of violence is radically incompatible with the protection of women who are victims of abuse ".

The Social judges consider fully assimilable the affirmation of the contested judgment that the applicant for the widowhood pension of common-law partners victim of gender violence cannot be required "to have the right to the widowhood pension," coexistence despite the mistreatment to which it was subjected when the purpose pursued by the legislator has always been, and especially from Organic Law 1/2004, to act against all situations of gender violence, either in marriage or between those who are united by a similar affective relationship ".

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