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2009-06-04 - Constitutional court, n. 96/2009

Family · Belgium · Discrimination · Marriage · Polygamy

Belgian law on social insurance applicable to a binational Belgian widow of a Moroccan polygamist

Key facts of the case - the Labour court of Antwerp has applied for constitutional review of provisions of the Convention on social insurance between Morocco and Belgium of 1968. More precisely the issue if to hold whether a disparity between Belgian widow in monogamous marriage (entitled to a full pension right) and Belgian widows in polygamous marriage with a Moroccan national (entitled only to a half pension) abides by the constitutional principle of equality and non-discrimination.

Main reasoning of the court - The court held reasonable a distinction between the right of a single surviving spouse to the full amount of her husband pension and the right of two or more widows who cannot claim but a portion of that pension. The fact that, in this case, a widow has also acquired Belgian nationality does not modify such a justification. Belgian law itself allowed situations where are accepted more than one beneficiaries of a survivor’s pension.
The Court pointed out that in the regime of public sector pension, each surviving divorced spouses are entitled to survivor’s pension in proportion to the respective periods of their marriage with the person who opens this right.
Due to the analogy between (Muslim) simultaneous polygamy and (Belgian) successive polygamy linked with divorce and new marriages, neither ordre public nor discrimination can be opposed to the fact that a binational Belgian widow of a Moroccan polygamist may have to divide her pension with other widows still living in Morocco.