The widow's pension reopens the debate on the rights of de facto couples

Fernando García often repeated a comment to his colleagues when he returned to work after the summer holidays: “I should have gotten married to have two more weeks”. However, his and his couple opted for a de facto union. “My boss told me that he was not entitled to those two weeks that are so much talked about. I didn’t complain much either because I wasn’t very clear about how it worked,” says this 34-year-old from Madrid.

Garcia’s case affects a few days off, but there are other even more important issues that illustrate the differences between the rights of common-law couples and marriages. In recent weeks, a recent ruling by the Supreme Court has generated much debate among family lawyers, which requires the registration of de facto couples in the registry to collect the widow’s pension. The ruling corrects the criteria that the same court established in April 2021, when it considered that to prove the existence of a de facto couple, not only was the registration valid, but also a certificate of registration or any other document that accredited “unequivocally ” coexistence. That ruling ordered granting a widow’s pension to a woman, but now the Third Chamber clarifies that it was an exception in a supposed “limit”.

“It is very common for unmarried couples not to register,” says María José Sánchez González, member of the Spanish Association of Family Lawyers (AEAFA). This is the case of Manuel Olaya, president of the Labor Law Section of the Valencia Bar Association (ICAV): “I have talked about it several times with my partner, and more so now with this subject of the widow’s pension, which you never know . I have other colleagues in the same situation.

Registration is not the only requirement for unmarried couples to access the widow’s pension. “In addition,” explains Olaya, “the couple must have shared five years of stable coexistence and be registered as a de facto couple two years before death.” However, if you are married, “you access the widow’s pension automatically, without these requirements,” says the president of the Family Law section of the Barcelona Bar Association (ICAB), Cristina Díaz-Malnero. This right only has one nuance, in the case of death due to common illness when this is prior to marriage: in that case it will be necessary to demonstrate that the couple had been married for a year.

The PSOE and United We Can government agreement includes the commitment to promote “the review of widow’s pensions, guaranteeing equal treatment in cases of couples without a marriage bond”, but there has been no progress so far in this legislature.

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“There are many more differences between being married or being a de facto couple,” continues the AEAFA member. “For example, de facto couples cannot make the income statement jointly, in case of death the couple cannot be subrogated in the property lease, they are not legitimate heirs of the assets (depends on the will). ..”. Sánchez sums it up like this: “On an economic level, the relationship is similar to the one you can have with a roommate or a cousin who lives with you.” “Essentially,” he continues, “the important thing is to understand that a marriage establishes a common economic regime, while a de facto couple does not.” For this reason, there are de facto couples who approve an economic agreement before a notary.

A frequently repeated reason for couples who marry is that they do so “for the children”, when, at an economic level, there are no substantial differences between marriages and de facto unions in this section. “The interest of the minor always prevails. There are neither more nor less rights for being married or being a de facto couple”, explains Díaz-Malnero. Thus, after a separation, both the members of a marriage and of a de facto couple have the same obligations with respect to the descendants. Among the members of the couple themselves, the situation is different in the event of a breakup if they are a de facto couple or a married couple: in the first scenario there is no possibility of establishing a compensatory pension in favor of one of the spouses, but it is usual after a marriage bond.

A couple walks through the streets of Madrid in 2020.
A couple walks through the streets of Madrid in 2020.Joaquin Corchero / Europe Press

Another substantial difference is labor rights. The workers’ statute recognizes married couples days of leave in the event that the spouse or some of her relatives enter the hospital or in the event of death. Jesús Antonio López, a 48-year-old worker at a logistics plant in Alovera (Guadalajara), was not granted days off by his company when his father-in-law died last year: “They told me that as a de facto couple I didn’t have days, so I had to spend my vacations”. López’s company committee recently informed him that the company now does grant permits for situations like the one he faced last year.

“This right does not exist for unmarried couples. The 15 days of vacation after the link are not recognized either, ”says Olaya. “Of course,” he adds, “it is common for the company’s collective agreement to extend these rights to de facto couples, but it doesn’t always happen. The judges are very restrictive in this aspect: the law says what it says”. The agreement of María Jesús Bocanegra, a 56-year-old journalist, equalizes her labor rights with those of married couples: “It is the same as if you were married. We became a de facto couple to be able to take days off in case of illness, and we even had vacations after formalizing it”.

Regional differences

Marriages are regulated by state law, unlike domestic partnerships. These depend on regional regulations. In most of them they reflect everything that has been exposed so far, but there are several that grant more rights to this type of link. This is the case of Aragon, the Balearic Islands, Catalonia, Galicia, Navarra, the Valencian Community and Euskadi. “For example, in Catalonia we have the fourth widow, which grants the de facto couple the right to inherit,” explains Díaz-Malnero, who calls for a state law that unifies criteria: “A law for stable couples is urgent. It would be fundamental to give security to de facto couples.”

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