Accreditation of the condition of common-law partner, widow's pension and principle of equality

Abstract

The recognition of the condition f common-law partner, due to the creation of the surviving member's widow's pension right, has been "and it still is" and area of special divisiveness.

Once it was declared the unconstitutionality of the fifth paragraph of art. 174.3 LGSS '94, that stipulated the reference to the autonomous legislation in determining what should be understood as a common-law partner, violating the constitutional principle of equality, the evidential force of this condition is legally and indistinctly recognized "art. 221 LGSS" the registration in the specific registers existing in the Autonomous Communities or in the town councils of the place of residence, "along with the public document which establishes the existence of the non-marital cohabitation", without being possible to prevail one "the one realized in the autonomous registry" on another "carried out in the municipal register".

Additionally, the legal framework of the widow's pension is an area where social reality has always been surpassing the legal reality. That is why jurisprudence has to play an essential role in the normative adaptation to new realities and social demands. It is necessary to overcome a strict, formalist interpretation of the regulation by replacing it with a final interpretation that guarantees respect for the principle of equality and non-discrimination for those unions whose existence is already established.