Information Note on the Court’s case-law 197

June 2016

Aldeguer Tomás v. Spain - 35214/09

Judgment 14.6.2016 [Section III]

Article 14

Discrimination

Difference in rights to retrospective survivor’s pension between same-sex couples and unmarried different-sex couples: no violation

Facts – In the Convention proceedings, the applicant complained that he had been discriminated against on the ground of his sexual orientation in that, as the survivor of a de facto same-sex union, he had been denied a survivor’s pension following the death of his partner in 2002.

He complained in particular of the difference of treatment between de facto same-sex unions, who had been unable to achieve legal recognition before the legalisation of same-sex marriage in 2005, and unmarried heterosexual couples who had been unable to marry before divorce was legalised in Spain in 1981. While the legislation legalising same-sex marriage did not recognise a right to a survivor’s pension retroactively, Law no. 30/1981 covering different-sex cohabiting couples who had been legally unable to marry did contain a retroactivity clause allowing the survivor to claim a pension even when their partner had died before that legislation came into force.

Law – Article 14 in conjunction with Article 8 of the Convention and Article 1 of Protocol No. 1: The applicant’s relationship with his late partner in a stable, same-sex, de facto union for more than eleven years fell within the notion of “private life” and “family life” within the meaning of Article 8 of the Convention. Further, although Article 8 did not address the issue of survivors’ pensions, the State had gone beyond its obligations under that provision by expressly providing such a right to spouses and to surviving partners of unmarried heterosexual couples who had been legally unable to marry before the entry into force of Law no. 30/1981. Consequently, the case was within the ambit of Article 8. The interest in receiving a survivor’s pension from the State also fell within the ambit of Article 1 of Protocol No. 1. Article 14 was thus applicable in conjunction with those provisions.

The Court found, however, that the applicant was not in a relevantly similar situation to that of a surviving partner of a different-sex couple who had been unable to marry because of an impediment to remarrying which had affected one or both members of the couple before 1981.

Firstly, the retrospective provisions of Law no. 30/1981 had the very specific purpose of providing a provisional and extraordinary solution giving the surviving partner access to a survivor’s pension under certain conditions against the background of a situation where the participation in building up pension rights by paid work had not been equally distributed among the sexes, since women were underrepresented in the work force.

Secondly, although there had been a legal impediment to marriage in both same-sex and different-sex couples, it was of a different nature. The applicant was unable to marry because the legislation in force during his partner’s lifetime restricted the institution of marriage to different-sex couples. The impediment to marriage in the case of different-sex couples did not result from the sex or sexual orientation of its members but from the fact that one or both partners were legally married to a third person and that divorce was not permitted at the time. What was at stake was an impediment to remarrying, not an impediment to marrying: the specific factual and legal situation addressed by Law no. 30/1981 could not genuinely be compared to the position of a same-sex couple who were ineligible for marriage in absolute terms, irrespective of the marital status of one or both of its members.

The difference in context and the difference in nature of the legal impediment to marriage thus made the situation of the applicant in 2005 fundamentally different from that of different-sex couples covered by Law no. 30/1981.

Conclusion : no violation (unanimously).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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