Zbornik Radova Pravnog Fakulteta u Nišu (Jan 2022)
The exercise and protection of the right to a surviror's pension in extramarital relations, or what has the legislator failed to disclose?
Abstract
The amendments to the Pension and Disability Insurance Act, enacted at the end of 2019, envisage that the right to a family pension can also be exercised by the surviving extramarital partner. Thus, extramarital partners have been equated (for the first time) with spouses in matrimonial relations. In order to be entitled to a survivor's pension, both spouses and extramarital partners must inter alia spend at least three years in marriage or extramarital union, or have a child together. The existence of an extramarital union is determined in a non-litigious proceeding. Although this statutory specification of the constitutional norm on the equality of marriage and extramarital union is praiseworthy, the authors point out that the new legal provision raises a number of issues. The situation is indisputable if a man and a woman were in an exclusive extramarital relationship that lasted for a long time, and particularly if they have at least one child together. However, in the event that one of them was in a parallel extramarital union with another person, or if the condition of gender differentiation does not exist or has ceased to exist, it raises the question how the existence of an extramarital union will be proven in non-litigious proceedings. The authors examine whether the existing legal framework provides for achieving the goal of the provision envisaged in the Pension and Disability Insurance Act, and how possible abuses of this right can be prevented in order to protect the conscientious (bona fides) users acting in good faith. Although the Serbian legislator finally decided to fully equalize marital and nonmarital unions in terms of exercising the right to a family pension, we believe that the existing solution needs to be improved in order to avoid confusion in practice and prevent possible abuses. Only the nominal introduction of the provision on the equality of married and non-marital partners with reference to the non-litigation procedure has already opened a number of questions in practice. In this paper, we point to some issues concerning the method of determining the quality of an extramarital union and the competition between two extramarital unions. An innovative solution, which would represent not only a concretization of the constitutional provision but also a qualitative contribution to the pension and disability insurance system, calls for amending the existing solution in the Pension and Disability Insurance Act, detailed regulation of the procedure for determining the existence of extramarital union as a named procedure in the Non-litigation Procedure Act, and the introspection what the legislator actually wants for and from an extramarital partner. Although it sounds like a serious task, the importance of an institution such as extramarital union certainly deserves not such an approach.
