Passive class and ordinary widowhood pension: winds of change on construction of proof of cohabitation antecedent to the marriage

Abstract

The proof of the existence of de facto partnership and/or periods of cohabitation has come to be recurrent litigious matter, in claims for the right to ordinary widow's benefit via article 38.4 TRLCPE and from the case of paragraph 1 of this article. In both cases, and questionable, it has been required evidence of both circumstances and also the proof to be used came assessed applying, on both cases, the provisions of article 38.4, ruling out the possibility of demonstrate by any other means of proof.

The analyzed judgment modifies the previous doctrine on evidence of coexistence as de facto partners in cases of entitlement to ordinary widow's pension from the state of marriage (second paragraph of article 38.1 TRLCPE). Evidence of the constitution of the domestic partnership is not required now; and demonstration of cohabitation by means of the requirement of certificate of registration as sole and exclusive means of proof is now abandoned, recognizing and valuing other evidences, in what could be considered a tacit drift towards the principle of freedom of means of proof.