Court of the Social number 26 Barcelona, Sentence 13 December 2018
Newspaper the Law, Number 9364, Section the Sentence of the day, 22 of February of 2019, Publishing Wolters Kluwer
Prior to 40/2014 STC the Catalan legislation it did not demand the inscription in public registry or the public writing, reason why the pair satisfied the requirements of the norm of the place. And although it is obligatory from then with two years of anteriority to the death, in the case it would have been impossible to fulfill it because to the woman ictus happened to him very serious and passed away to the 5 months of to have entered operation the specific registry in Catalonia.
To the time of the death, cause and plaintiff were, to all the effects and according to the Catalan civil legislation, a pair in fact because they coexisted together and they had common descendants that it was what was demanded so by normative.
However, the INSS denied it because as a result of the publication of the sentence of Constitutional Court 40/2014 (LAW 19899/2014), in all the autonomous regions the obligation settled down of which the pair in fact was enrolled in a public registry or public writing to the effect would have been constituted. It could not have inequalities in the different territories. And this requirement had to turn at least two years before the death.
For the court it is had to analyze each case in particular, and in this individual it understands that there is to go itself to a flexible interpretation of the norm in attention to the circumstances that surrounded it.
Indeed to the woman year happened to him ictus only half after the publication of this sentence. Since mention has become, until then in Catalonia the inscription in a registry or the granting of public writing for the pair constitution was not necessary in fact. It was enough with the coexistence during two years or the common descendants. No lawyer recommended until that moment the inscription or the public writing because he was unnecessary.
The data is also excellent of which in Catalonia the registry of pairs in fact hardly entered operation 5 months before the death of the cause.
Therefore, although the sentence of the Constitutionalist was dictated more than two years before the death, which makes him insist to the INSS that had time to formalize their pair, nevertheless did not have the mechanisms adapted for this legalization in agreement with the new legal criterion. Indeed the specific Registry in Barcelona was not created until enough time later, and although another form existed to do it (the constitution of public writing), it is clear that when a person has a disease of that gravity is impossible to go to the notary. It is more, the wife had a serious mental deterioration, reason why it would be possible to be conceited that it was not even in conditions for granting a public writing to formalize his union in fact.
As a result of the previous thing, the mere breach of this imposed formal requirement of form happened by the publication of the STC, cannot take to deny the widow's pension to the pair sup©rstite.
It understands the judge that is present a will of both of to have fulfilled the formal requirements as far as its inscription as pair in fact, will that was frustrated the undergone salary the cause of the benefit serious ictus.
It points the sentence, that if the own professionals of the right and the Catalan legal community generally so much in the putting in practice of the obligations imposed by the Constitutional Court were delayed on the basis of which they had to study and to digest all shades and consequences, with more reason is due to exempt to him to this pair of this formality in as much had an insufficient time well-known.
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