ATTENTION – THIS IS AN AUTOMATIC TRANSLATION from Polish
The Court of Appeal in Lublin, in its judgment of November 21, 2019 (case file III AUa 912/18), ruled on the issue of a widow's entitlement to a survivor's pension under the conditions of a separation granted before the death of the insured husband. The court held that separation generally precludes the acquisition of this entitlement, unless the widow had an established right to alimony from him on the date of her husband's death.
In the case, the complainant applied to the Social Insurance Institution in Lublin for a survivor's pension after her deceased husband. The widow argued that despite the separation, the spouses had effectively resumed their cohabitation, lived together, maintained a shared household, used a joint bank account, and her husband regularly provided her with funds for current expenses and cared for her due to her poor health. However, the pension authority refused the benefit, citing the lack of marital community due to the separation ordered by the final decision of the District Court in Lublin of April 9, 2013.
The applicant appealed against this decision to the District Court in Lublin, but the court found the decision to be correct. This position was also upheld by the Court of Appeal in Lublin, which, acting under Article 385 of the Code of Civil Procedure, dismissed the applicant's appeal as unfounded.
The Court of Appeal correctly emphasized that a separation order can only cease as a result of the dissolution of the marriage by divorce, annulment of the marriage, or annulment of the separation by a court decision (Article 616 of the Family and Guardianship Code). This decision is constitutive in nature, meaning that the effects of the separation cease only upon its annulment by the court. In this case, none of these conditions were met. "The mere resumption of cohabitation by separated spouses does not terminate the separation, and the effects of the separation decree continue," the justification reads.
Due to the fact that the effects of the separation continued at the time of the spouse's death, Article 70, Section 3 of the Act on Pensions and Disability Pensions from the Social Insurance Fund (FUS) applies. According to this provision, a spouse who was not in a marital relationship with her husband until his death is entitled to a survivor's pension if, on the date of her husband's death, she was entitled to alimony from him, established by a court judgment or settlement. Voluntary contributions to maintenance do not meet this statutory requirement. In this case, given the lack of a formal maintenance order, the separation decree itself constitutes an obstacle precluding the granting of the benefit, regardless of the nature of the actual relationship between the spouses. The judgment of the Court of Appeal in Lublin confirmed that a legally binding separation decree constitutes an obstacle to obtaining a survivor's pension, unless the widow had an established right to alimony at the time of the spouse's death. The court emphasized that the legal effects of separation cease only by a court ruling annulling it, while the mere resumption of cohabitation does not restore entitlement to benefits from the Social Insurance Fund (FUS).
The ruling exemplifies the consistent jurisprudence of courts adjudicating social security appeals. In its written justification, the Court of Appeal cited, among other things, the view expressed by the Supreme Court: the legal situation of a separated spouse corresponds to that of a divorced person. A departure from this principle is only possible pursuant to express statutory regulation, which is not provided for in the Pension Act. Therefore, taking into account the consequences arising from the Constitutional Tribunal's judgment in case SK 61/13, a court ruling on separation excludes the spouse's right to a survivor's pension under Article 70, paragraph 1 of the Constitution. 3 of the Pensions Act, unless she was entitled to maintenance from her husband on the date of his death (Supreme Court judgment of 27 July 2017, II UK 308/16).
The judgment is final.