Supreme Court ruling on orphan's pension

The 10th Civil Chamber of the Supreme Court of Appeals has ruled that individuals determined to be continuing to live with their divorced spouse are not entitled to receive an orphan's or survivor's pension. The Chamber emphasized that for the purpose of terminating the pension, the focus is not on whether the divorce was genuine or fraudulent, but rather on the actual living situation following the divorce.

In the case subject to the ruling, a woman who had been receiving an orphan's pension following her father's death in 2002 had divorced her husband in 2001. The Social Security Institution (SGK) terminated her pension on October 26, 2008, on the grounds that it had determined she was cohabiting with her divorced spouse, and recorded the previous payments as a debt.

The woman filed a lawsuit for the cancellation of the SGK's action, but her request was rejected. After reapplying to the institution in 2022 and receiving a negative response, the woman went to the Labor Court, requesting that her orphan's pension be reinstated and that the unpaid pensions be paid with legal interest.

The Labor Court accepted the case and canceled the SGK's rejection decision dated August 12, 2022. The court ruled that the orphan's pension should be paid starting from the application date of July 19, 2022, and that the accumulated amounts should be given to the plaintiff along with legal interest. After the SGK's appeal was rejected by the Regional Court of Justice, the file was moved to the Supreme Court.

SUPREME COURT: ACTUAL LIVING SITUATION, NOT THE PURPOSE OF DIVORCE, IS THE BASIS

In its review, the 10th Civil Chamber of the Supreme Court of Appeals drew attention to the regulation in the Social Insurance and General Health Insurance Law No. 5510. It was recalled that the law stipulates that the income or pension of individuals "determined to be cohabiting with their divorced spouse, even though they are divorced," shall be terminated.

According to the Chamber, the law does not seek an additional condition regarding the purpose for which the divorce was obtained. Therefore, the SGK or the courts do not need to investigate whether the spouses' intent to divorce was sincere. The determining criterion is whether the former spouses are actually living together after the divorce.

The ruling stated that if it is determined that divorced spouses have resumed cohabitation for any reason as of October 1, 2008, the termination of the granted income or pension is mandatory. Thus, whether the divorce was "genuine" was not considered sufficient on its own for the continuation of the pension.

In the concrete case, the Supreme Court concluded that the investigation was incomplete. The Chamber noted that the addresses of the plaintiff and her divorced spouse in the population registration system should be investigated, and that it should be determined through law enforcement who lived at these addresses during the disputed period.

Furthermore, it was stated that the fact of cohabitation should be revealed in detail by questioning individuals such as the neighborhood headman (muhtar), neighbors, doormen, and building managers. For these reasons, the Regional Court of Justice's decision was overturned; the first-instance court's decision was unanimously reversed. A new decision will be made in the case based on the evidence to be obtained as a result of the investigation to be conducted.