From survivors’ pensions to adoptions: the outstanding issues regarding the Cirinnà Bill
Ten years after the Civil Partnerships Act came into force, a ruling by the Constitutional Court has reignited the debate on the rights of same-sex couples
A ruling by the Constitutional Court redefines social security contributions for same-sex couples. This is a new development, one that has received little attention in public debate or in the case law of the courts of first instance and the Court of Cassation. It is, however, an issue that weighs heavily on the daily lives of gay couples bound by a de facto partnership. The ruling by the supreme judicial body adds another piece to the painstaking construction of a regulatory framework that makes civil partnerships increasingly similar to equal marriage.
The story
What happens when one partner dies and the other wants access to their pension? This is what happened to the gay couple at the centre of this legal case. Following the death of their spouse, the surviving partner turned to the National Social Security Institute (INPS). The request was for the survivor’s pension to be paid to them, as they had previously been denied it. The issue had been raised by the Court of Cassation, Joint Civil Chambers, with reference to Articles 2, 36 and 38, paragraphs two and three.
With judgement no. 91, the Constitutional Court has therefore extended the protection of social security contributions to the surviving partner of a same-sex couple married abroad, recognising unequal treatment under the previous legislation.
The judgement
LThe constitutional illegality lies in Article 13 of Royal Decree-Law No. 636 of 14 April 1939, ‘in so far as it does not permit thethe award of a survivor’s pension to the surviving partner of a same-sex couple married abroad, in the event of the death of the other partner occurring before the entry into force of Law No. 76 of 20 May 2016”. In the Constitutional Court’s view, ‘there is no constitutional requirement to treat same-sex unions as equivalent to marriage’.
The legislature has also recognised the effects of civil partnerships in relation to same-sex marriages celebrated abroad, placing spouses and civil partners on an equal footing for pension purposes. We are talking about ‘additive’ decisions, as the Constitutional Court uses the expression ‘insofar as it does not provide for’. The provision therefore lacks elements that it ought to have, and this is where the so-called ‘compulsory rhyming laws’ come into play.
