European Court of Human Rights
European Court of Human Rights

Spain: Strasbourg court ruling in same-sex survivor pension rights row

A Spanish man’s inability to claim a survivor’s pension, following the death of his same-sex partner, was not discriminatory, Strasbourg human rights judges have ruled.

In today’s judgment in the case of Aldeguer Tomás v. Spain (application no. 35214/09) the European Court of Human Rights held, unanimously, that there had been:

no violation of Article 14 (prohibition of discrimination) read in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights and Article 1 of Protocol No. 1 (protection of property) to the Convention.

The case concerned the applicant’s complaint of having been discriminated against on the ground of his sexual orientation in that he was denied a survivor’s pension following the death of his partner, with whom he had lived in a de facto marital relationship.

The applicant, Aldeguer Tomás, had been unable to marry his partner under the law in force during the latter’s lifetime.

Three years after his partner’s death, the law legalising same-sex marriage in Spain entered into force.

The court concluded that that there had been no discrimination in Aldeguer Tomás’ case.

In particular, his situation following the entry into force of the law legalising same-sex marriage in Spain in 2005 had not been relevantly similar to that of a surviving partner of a heterosexual cohabiting couple, who had been unable to marry his or her partner before the law legalising divorce entered into force in 1981 and who qualified for a survivor’s pension by virtue of a provision of that law.

Moreover, states had, at the relevant time, a certain room for manoeuvre (“margin of appreciation”) as regards the timing of the introduction of legislative changes in the field of legal recognition of same-sex couples and the exact status conferred on them, an area which was regarded as one of evolving rights with no established consensus.

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