As a consequence of the judgment of the Constitutional Court of March 11, 2014, in relation to the annulment of the fifth paragraph of article 174.3 of the General Law of Social Security (LGSS), and the commotion that this has caused, we offer this brief explanation or clarification on the subject.
The aforementioned fifth paragraph of article 174.3 of the LGSS, said in essence, and so that we understand each other, that each of the Autonomous Communities with their own Civil Law, complying with the coexistence requirement established by the LGSS itself, could establish the accreditation criteria de facto couple.
According to what is established in Art. 234.1 of Book II, Chapter IV of the Civil Code of Catalonia (CCCat), there are three requirements to be considered a de facto couple in Catalonia:
a) If the cohabitation lasts more than two interrupted years.
b) If during the cohabitation, they have a child in common.
c) If they formalize the relationship in a public deed.
Well then, making an analysis of the state and Catalonia criteria to be considered a de facto couple, we clearly see that two of the requirements that the Autonomous Community of Catalonia establishes are not contemplated in the fourth paragraph of article 174.3 of the LGSS, and are :
– That the cohabitation last more than two interrupted years, since the LGSS establishes five years of cohabitation.
– and have a child in common, which is not provided for in the LGSS.
We must also mention that there are some personal requirements to take into account, provided for in Art. 234.2 of Book II, Chapter IV of the aforementioned Civil Code of Catalonia and which are:
The following people cannot constitute a stable couple:
a) Unemancipated minors.
b) Persons related by kinship in a straight line, or in a collateral line within the second degree.
c) People married and not separated in fact.
d) People who live as a couple with a third person.
Well then, making a small comparison with what the also mentioned fourth paragraph of article 174.3 of the LGSS tells us, we see a small difference, which lies in the fact that section c) of Art. 234.2 of the CCCat., “people married and not separated in fact".
According to the stricto sensu interpretation of what the CCCat says, they could become a common-law couple in Catalonia, people with a separation sentence, or even separated in fact; This is not the case according to the LGSS, since it establishes as personal requirements, people who are not prevented from getting married, and do not have a marital relationship with another person, that is, single and/or divorced people, not separated, since separated people do not they can get married.
Well, having clarified this, we can say that for the LGSS to consider you a common-law partner, and thus have the right to a widow's pension, you must comply with the following:
“Those who, not being prevented from marrying, do not have a marital relationship with another person and prove, through the corresponding certificate of registration, a stable and notorious coexistence immediately after the death of the deceased and with an uninterrupted duration of not less than five years. The existence of a de facto couple will be accredited by certification of the registration in one of the specific registries existing in the Autonomous Communities or Town Halls of the place of residence or by means of a public document stating the constitution of said couple. Both the aforementioned registration and the formalization of the corresponding public document must have occurred at least two years in advance of the date of death of the deceased.”
FINAL COMMENT: Having made these small paragraphs on the subject, and due to the fact that the registries authorized by the Autonomous Communities and/or Town Halls, which are very few (many Town Halls do not have them, since it entails many expenses and inconveniences), and according to the comments we receive from customers, there are obstacles and its operation is not entirely agile in the event that there are, the best thing, and without wishing to throw flowers on our own roof, is that you make the public deed of domestic partnership, and if it is possible or you want, you register at the same address, and all this so that in the future you do not have problems if unfortunately you have to claim the widow's pension.
