12 May 2023
Ombudsman Diana Kovacheva sent a recommendation to the Deputy Prime Minister and Minister of Social Affairs Lazar Lazarov regarding the criteria for granting a supplement to the pension of a deceased spouse, according to which the survivor must be in a civil marriage with his/her deceased partner – Article 84 of the Social Security Code (CSO).
The reason for the recommendation is based on the frequent complaints from affected citizens who lived in de facto cohabitation.
“As an advocate for the rights of citizens, I would like to draw your attention to the issue, in view of the existing trend of fewer and fewer people forming families without entering into a civil marriage within the meaning of the Family Code, living on family principles. On the other hand, there is also a significant number of single adults who later in life find a partner with whom to live out their old age and help each other, but without entering into a civil marriage,” writes the Ombudsman.
Diana Kovacheva emphasizes that in practice there is no mechanism for adequate support from the State to such persons. She is categorical that the conclusion of a civil marriage is based on the free will and choice of people, giving rise to a number of legal consequences, which include not only rights, but also obligations for the spouses, e.g. for maintenance, for joint and several liability to creditors, etc., which obligations do not apply to citizens who live and have lived in a de facto cohabitation and in a joint household.
“It is true that cohabitation under civil marriage does not lead to a different contribution of spouses to the social security system compared to those who are not married and who live together, but even if the social security obligations are similar, the possibilities of benefiting from the social security system for unmarried persons and for persons currently married are different in the case of a deceased partner or deceased spouse”, the Ombudsman adds.
Kovacheva points out that people who live in de facto cohabitation do not have the rights and obligations that spouses have, including hereditary ones, therefore they are not in a comparably similar situation.
“Cohabitation does not have the effect of a civil marriage and has legal effects only where the legislation explicitly provides for it, and in this case there is no rule entitling persons who lived together without being married to receive a supplement to the pension of a deceased partner”, the Ombudsman stresses.
She draws attention to the fact that more and more couples are living without marriage in de facto cohabitation, and this is emerging as the main form of family creation. She indicates that this form is not stipulated in the Family Code, although various laws provide for the legal definition of the concept.
“Already in 2008, a bill amending and supplementing the Family Code was submitted, which proposed the regulation of de facto conjugal cohabitation, but the Bulgarian legislator, upon adopting the Family Code of 2009, rejected the proposals and at the moment the de facto cohabitation has not been recognized and regulated in a complete and systematical way. The main argument against the regulation of de facto cohabitation is that it contradicts the value system established in our society and the moral understanding of family and marital obligations,” writes Prof. Kovacheva
She emphasizes that there are legal definitions of this concept in the Bulgarian legal system. She gives an example with §1, item 18 of the Additional Provisions of the Counter-Corruption and Unlawfully Acquired Assets Forfeiture Act – de facto cohabitation is voluntary joint cohabitation of two adults with regard to whom a kinship constituting an impediment to entry into marriage does not exist, which has continued for more than two years, and whereupon the persons take care of one another and of a shared household.
“The same definition is also contained in §1, item 6 of the Additional Provisions of the Judiciary Act. The concept is also used in other laws without being defined. This means that the de facto cohabitation is recognized by Bulgarian law and is associated with certain legal consequences,” adds the Ombudsman.
In conclusion, Diana Kovacheva recommends to consider the possibilities of introducing appropriate mechanisms for adequate support of the affected citizens in order to guarantee their dignified life.