The survivor’s pension is “an indirect right enabling the surviving spouse to receive a fraction of the pension to which he was entitled upon the death of his spouse” (P. Murat [dir.], family lawCampaign Dalloz 2020/21, 8e Edition, No. 411.101). This pension is considered to be “one of the consequences of financial solidarity between spouses who have contributed jointly to the maintenance of the household and, through their complementary activity, have made it possible to build up pension rights” (minimum register no. 28358 , JO Senate Q. 15 Feb. 1979, p. 282). The Constitutional Council has also emphasized that the survivor’s pension “is intended to compensate for the loss of income suffered by the surviving spouse as a result of the death of his or her spouse” (Cons. const. 29 July 2011, No. 2011-155 QPC, Dalloz News, 30 August 2011 , remark MC de Montecler, AJDA 2011. 1591 ; D. 2012. 971, obs. JJ Lemouland and D. Vigneau ; ibid. 1033, obs. Mr. Douchy-Oudot ; AJ family 2011. 436, obs. W. Jean-Baptiste ; RTD civil. 2011. 748, obs. J Hauser ) and provides “replacement or auxiliary income” (Cons. const., 2013 Oct. 11, No. 2013-348 QPC, AJDA 2013. 2003 ; D. 2013. 2344 ). This nature explains in particular the resource requirements for the award of the survivor’s pension (see Dalloz Action prec., spec. nshe 411-121 to 411-133). Its allocation is governed by the Social Security Code and the National Old Age Insurance Fund (CNAV) decides on the applications of surviving spouses.
Law n. 2021-1109 of August 24, 2021 (OJ August 25) confirming respect for the principles of the Republic establishes, in a new article L. 161-23-1, A of the Social Security Code, the principle that the Survivor’s pension after the death of a pensioner “can only be paid to a single surviving spouse”. This text, resulting from Article 15 of the law, came to a contentious point, namely the division of the survivor’s pension between the widows of the bigamistic husband.
The issue should not arise under French law, as Article 147 of the Civil Code provides that “one cannot enter into a second marriage before the first has been dissolved”. This results in a ban on remarriage – the ban also includes marrying the same person – without having obtained the dissolution of the first marriage. According to Article 184 of the Civil Code, it is then established that bigamy is a ground for the absolute nullity of marriage. If the ban is imposed, the fact remains, particularly with regard to international law, that such partnerships exist and that the French courts are aware of them and according to art 3 of the Civil Code). In fact, the Court of Cassation was led to recognize such unions based on the personal status of each spouse (Civ. 2e, May 2, 2007, No. 06-11.418, Dr. family 2007. Comm. 182, note A. Devers; February 14, 2007, Noshe 05-21.816 and 06-10.557, dr. family 2007. Comm. 99, note A. Devers) and also to recognize this second wife, married in violation of Article 147, as a surviving spouse entitled to a survivor’s pension (Civ. 2e, 12 February 2015, No. 13-19.751, D. 2016. 336, Obs. O Boskovic, S Corneloup, F Jaault-Seseke, N Joubert, and K Parrot ; Rev. critical DIP 2015. 621, note E. Ralser ; Nov. 5, 2015, No. 14-25.565, D. 2016. 336, Obs. O Boskovic, S Corneloup, F Jaault-Seseke, N Joubert, and K Parrot ; 20th of December ….