Survivor's pension: Dismiss in case of survivor of a de facto same-sex union ended before the enactment of law no. 13/2005. (No comparable situation to that of the heterosexual couples referred to in the AD 10.1 of law no. 30/1981). Comment to the judgment of the European Court of Human Rights 14 june 2016 (Case of Aldeguer Tomás v. Spain, application no. 35214/09)

Abstract

The survivor of a de facto same-sex unión ended by the death of his partner before the enactment of Law no. 13/2005 (which regulates homosexual marriage), complained before the Spanish domestic courts his right to receive a survivor's pension claiming as a based on his right to be equated with the survivors of heterosexual unions ended by the death due to the death of one of the members of the couple before the enactment of law no. 30/1981 (divorce law), who could not marry because one or both were married to third parties, whose marriage was indissoluble by divorce. Not having succeeded in his domestic claim, he went before the ECHR on the grounds that he had been discriminated against because of his sexual orientation and claimed the same treatment given to heterosexual couples who were not allowed to marry before the divorce was legalized. He based his application on art. 14 (prohibition of discrimination) in relation to art. 8 of the same Convention (right to respect for private and family life); although the Court also examines the possible violation of art. 1 of Protocol 1 to the Convention (the peaceful enjoyment of private possessions). The Court dismisses the application, stating unanimously that the abovementioned rules have not been violated; the situations described above are not comparable situations because, although in both cases there was an impediment to marriage, it was of different nature in each of them. Neither can the State be criticized for the delay in the promulgation of the 2005 and 2007 norms that recognize marriage and homosexual union, because it is an evolving right without an established consensus, in which the State has a large margin of discretion on the most opportune moment to introduce legislative changes.