issued by the Registrar of the Court
ECHR 202 (2016)
14.06.2016
Inability of surviving same-sex partner who was not married to receive
survivor’s pension: not discriminatory
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, Mr 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 Mr 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.
Principal facts
The applicant, Antonio Aldeguer Tomás, is a Spanish national who was born in 1955 and lives in
Pozuelo de Alarcón (Madrid), Spain.
Mr Aldeguer Tomás’ partner, with whom he had lived together in a homosexual relationship since
1990, died in 2002. In 2003 Mr Aldeguer Tomás claimed social security allowances as a surviving
spouse. The National Institute of Social Security (“INSS”) refused to grant him a survivor’s pension on
the grounds that he had not been married to the deceased person.
Following the entry into force of the law legalising same-sex marriage in Spain in July 2005, Mr
Aldeguer Tomás filed an administrative complaint against the INSS’ 2003 decision. The INSS
dismissed his complaint, noting that under the legislation in force he could not gain the status of a
widower. Mr Aldeguer Tomás challenged that decision before the courts, and in November 2005 the
Social Tribunal found for him, holding that the facts of the case had to be assessed in the light of the
new law on same-sex marriage. It also recalled that a provision of the law legalising divorce of 1981
recognised the right to obtain a survivor’s pension for individuals who had been prevented from
1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,
any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges
considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final
judgment. If the referral request is refused, the Chamber judgment will become final on that day.
Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.
Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.
