In the judgment of the Court of Appeal in Lublin of November 21, 2019, file ref. III AUa 912/18, the court considered the issue of entitlement to a pension to a widow who was separated from her deceased husband. The court stated that the legal separation ruling excluded the widow’s right to a survivor’s pension, unless she was entitled to maintenance from her husband on the day of her husband’s death. The actual existence of the marriage does not affect the right to a survivor’s pension, since the separation ordered by the court has not been abolished.
In the case in question, the Social Insurance Institution (ZUS) Branch refused the widow’s right to a survivor’s pension. In its justification, the pension authority indicated that on the day of their death there was no marriage between the spouses due to the separation ordered by a final court judgment.
In its decision, the Court of Appeal indicated that in order to end the separation ordered by the court, the marriage must be dissolved by divorce, annulled or the separation abolished as a result of a court decision. This enumeration can be found in Art. 616 § 1 of the Family and Guardianship Code. The said judgment is constitutive in nature, so the effects of the separation cease only when the separation is abolished by the court.
This means that the mere taking up of a joint relationship by the separated spouses does not terminate it. The effects of the separation order are still ongoing.
The court also drew attention to the fact that the burden of proving the condition for obtaining the right to a survivor’s pension – maintenance by the deceased spouse, rested in this case with the widow.
Pursuant to Art. 70 paragraph. 3 of the Act of 17 December 1998 on pensions and pensions from the Social Insurance Fund, a divorced spouse or a widow who was not married to her husband until the date of her husband’s death, is entitled to a survivor’s pension, if she had the right to maintenance on his part determined by a judgment or a court settlement. The Court of Appeal stated that this provision also applied to the widow who was separated by the court.
The entitlement to the survivor’s pension of a widow with a separated separation depends, therefore, on whether she was entitled to maintenance from her husband on the day of her husband’s death. Moreover, this right should be established by a judgment or a court settlement. The court referred to the judgment of the Constitutional Tribunal of May 13, 2014, which states that in order to establish the right to a survivor’s pension, it is sufficient for the spouses to agree on the manner of fulfilling the maintenance obligation.