The Supreme Court softens the requirements to collect widowhood pens for separated or divorced persons

The Plenary Session of the Social Chamber modifies the doctrine that it had until now requiring that the pension received after divorce or separation be fixed in a nominal manner and expressly as a compensatory pension.

The Plenary Session of the Social Chamber has agreed to recognize the provision of widowhood to a woman who, after separation, had received a monthly amount in terms of maintenance, without the separation regulating agreement having set a compensatory pension but only food , Although the beneficiary did not have the common child in charge of it.

The Chamber recalls that while the provision of food meets the needs of children, the compensatory pension aims to address the economic imbalance after a marriage break.
However, in many cases the concepts of economic benefits that are paid as a result of separation or divorce generate confusion because the attribution of the care of the children to one of the parents makes the pension understand both the compensatory purpose and the Food (thus, when concepts such as "food and help to wife and children", "family loads", "wife and children expenses" are used).

Given the picture of innominated pensions that appears in the agreements of separation and divorce it is not possible to fit exclusively to the denomination given by the parties and can not be demanded that the compensatory pension has been fixed with this denomination to be able to accede to its moment To the provision of widowhood, but "it will be necessary to go to the true nature of the pension fixed by the person causing it, extracted from the circumstances of the case and going in addition to a finalist interpretation."
For all this, the recognition of the widow's pension is to determine whether, in the specific case, the death ends an obligation assumed by the deceased spouse in order to meet the purpose of the compensatory pension, that is, the loss Of the economic amount to which it is entitled at the time of death and which is lost for this cause.

The Judgment, which has the particular vote of one of the magistrates, dismisses the appeal filed against the Judgment issued by the Superior Court of Justice of the Canary Islands, which had recognized the pension and recalls that according to article 174.2 of the General Law Of the Social Security to be entitled to a widow's pension "in the cases of separation or divorce ... it will be required that divorced or separated persons judicially be creditors of the compensatory pension referred to in article 97 of the Civil Code and this Be extinguished at the death of the causer ".

In previous occasions (SSTS 14-2-2012, resource 1114/11, 21-2-2012, resource 2095/11 and 17-4-12, appeal 1520/11) the Chamber, when interpreting the requirement to be entitled to a pension Compensatory had demanded that the pension received after divorce or separation be fixed in a nominal manner and expressly as a compensatory pension, a doctrine that is now modified by the Chamber.

On the other hand, with regard to the second of the requirements (that the compensatory pension expires at the date of the death of the spouse), in Sentence of 18-9-2013, resource 985/2012, the same Room of the Social of The Supreme Court has recognized widowhood pension to a widowed person, separated judicially, to which the separation sentence had assigned a compensatory pension, although during the last eleven years prior to the death of his spouse he had not received or claimed the pension.
The Chamber understood in this other Judgment that the norm requires that the divorced or separated person be recognized the compensatory pension, not that he is actually receiving the same at the time of the death, so that the non-claim of compensatory pension It does not mean its extinction.

The new Social Welfare criterion was adopted in the Plenary on January 29, and the decision of the first of the sentences in which it was filed has been notified to the parties, who will be notified of the sentence in full in the next days.