The Supreme Court has given the reason to a Moroccan woman to continue charging the pension of widowhood recognized after marrying in Morocco with a Spanish citizen who was still legally linked to another wife. Social Security had claimed the return of 15,959.74 euros when considering the marriage for being an assumption of polygamy and improving the charged amounts undue, something that the high court rejects by remembering that there was a prior final sentence that endorsed the benefit and that the beneficiary acted in good faith.
Everything begins when Jesus Manuel marries Clara in 1950 and the result of that relationship have 4 children in common, but years later, in 1984 they decide to separate and then dissolve the link through divorce. Years later, this same man contracts religious marriage in Morocco with Zaira, with whom he had three children, although “the marriage was not registered in the Civil Registry of Spain” and in 1992 he dies, so Clara decides to request the widow’s pension charging her as an initially.
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Ten years later, in 2002, Zaira also requested the widow’s pension and Social Security was granted “in a pro rata of 25.8%, being the regulatory base of the pension 1.126.41 euros and the date of economic effects on March 25, 2002”. At the same time, Clara’s pension was reduced to 74.2%. Despite the fact that everything was in order, Social Security decides in 2017 to review the file and proceeded to cancel the widow’s pension to Zaida and claim the amounts charged unduly, which was 15,959.74 euros.
The reason is that the second marriage should be considered void because it was an assumption of polygamy, since apparently this man was still united to his previous wife. Zaida explained that she never hides anything and that she always acted in good faith in the eyes of administration, so before the view of the facts she decided to go to the courts.
The nullity of marriage, key in the pension dispute
While in the first instance, the Social Court number 4 of Malaga gave the reason to Social Security, the Superior Court of Justice of Andalusia gave the reason the widow. The Court stressed that “there has been a marriage legally held abroad by the Qurian’s rite (…) the result of whose union was born three children” and stressed that Zaira “has worked in good faith, without concealment, having lived together according to his national law as a person married to the deceased until his death.”
With these arguments, he dismissed the Social Security claim and confirmed his right to pension. Social Security, not being as he decided to present a appeal before the Supreme Court, insisting that the second marriage should be considered void by polygamy.
Even so, the high court rejected it, explaining that there was already a prior pronouncement of the Social Court of Córdoba in 2004 that had validated the distribution of the pension. In the words of the Supreme, “the review of declarative acts of rights (…) does not fit when after the resolution that the managing entity intends to modify there was a final sentence that endorsed it.”
So for everything, the high court ended up giving Zaira to keep his right to the widowhood pension and rejecting the return of 15,959.74 euros claimed.