The article for the magazine FOCUS on FICSA 2010 The United Nations Women’s Guild Geneva. World Trade Organisation (WTO). Children's Walk. Human Rights, the Convention on the Rights of the Child, and the appalling consequences of HIV/AIDS for children in today s world.  Divorced Surviving Spouse’s Benefit.

   

Review of recommendations for modification/elimination of certain eligibility conditions under Article 35bis, Updated as of 20 January, 2009

Article 35 bis

Proposed text

Comments

Divorced surviving spouse's benefit

a) Any divorced spouse of a participant or former participant, separated on or after 1 April 1999, who was entitled to a retirement, early retirement, deferred retirement or disability benefit, or a participant who died in service on or after that date, may, subject to the provisions of article 34(b) (applicable also to widowers), request a former spouse's benefit, if the conditions specified in paragraph (b) below are fulfilled.

a) Any [divorced] former spouse divorced on or after 1 April 1999 from a participant or former participant who was entitled to a retirement, early retirement, deferred retirement or disability benefit or from a participant who died in service may, subject to the provisions of article 34(b) (applicable also to widowers), request a former spouse's benefit if the conditions in paragraph (b) below are fulfilled.

a) As agreed at the Working Group meeting on 1-2 April 2004 in Geneva and in accordance with FAFICS proposals to the JSP Board in July 2004, 2006 and 2008.

Under the existing article 35bis(a) a former spouse of a participant separated from service before 1.4.1999, still married after the separation and divorced some time after 1.4.1999  will be getting only twice the minimum (article 35bis(e)), having met all the other eligibility conditions and after long years of marriage; it is aberrant. Besides, the survivor’s benefit is a prospective right, which is determined on the day of the death of the participant on the basis of existing Pension Fund Regulations.

It is an outdated discrimination on the basis of divorce – a social status and also on the basis of age, the former spouse is usually older than the new one. 

b) Subject to paragraph (d) below, the divorced spouse is entitled to the benefit set out in paragraph (c) below, payable prospectively following receipt of the request for a divorced surviving spouse's benefit, if, in the opinion of the Chief Executive Office of the Fund, all of the following conditions are fulfilled:

No change

 

(i) The participant had been married to the former spouse for a continuous period of at least ten years, during which contributions were paid to the Fund on account of the participant or the participant was awarded a disability benefit under article 33 of the Regulations

(i) The participant had been married to the former spouse for a continuous period of at least [ten] five years during which contributions were paid to the Fund on account of the participant or the participant was awarded a disability benefit under article 33bis of the P.F. Regulations.

(i) As agreed at the Working Group meeting on 1-2 April 2004 in Geneva and repeatedly recommended by the FICSA Council.

In July 2008, FAFICS suggested inter alia, that a requirement of article 35bis(b)(i) with regard to 10 years of continuous period of marriage as an entitlement to a survivor’s benefit by a divorced spouse should be reduced to five years. The Pension Board requested that an appropriate text be presented by the Secretary/CEO for consideration at its next session in 2009.

The reduction to five years of the ten-year period of marriage now requested under

Article 35bis (b) (i) is necessary by analogy with Article 28 of the Fund Regulations which provides that a participant, to get a pension benefit, needs five years of contributory service.

(ii) The former spouse had not remarried.

(ii) [The former spouse had not remarried]

(ii) In line with the recommendation of the Pension Board and as approved on 23 December 2008 by the General Assembly. The final resolution, not yet published, will be released as A/Res/641 and placed on the Pension Fund’s website.

(iii) The participant's death occurred within 15 years of the date when the divorce became final, unless the former spouse proves that at the time of the death the participant was under a legal obligation to pay maintenance to the former spouse.

(iii) It is proposed that this paragraph be deleted

(iii) As proposed at the Working Group meeting on 1-2 April 2004 in Geneva and in FAFICS proposals to the UNJSPB of 2004, 2006 and 2008.

(iv) The former spouse has reached the age of 40.  Otherwise the benefit entitlement shall commence on the day immediately following the day that age is reached.

(iv) The former spouse has reached the age of 40,  otherwise the benefit entitlement shall commence on the day immediately following the day that age is reached unless there are one or more dependent children resulting from the marriage in his or her custody.

(iv) As proposed at the Working Group meeting on 1-2 April 2004 in Geneva and in FAFICS proposals to the UNJSPB of 2004, 2006 and 2008.

(v) Evidence is provided by the former spouse that the participant's pension entitlement from the Fund was not taken into account in a divorce settlement.

(v) Evidence is provided [by the former spouse] that [the participant’s pension entitlement from the Fund was not taken into account in] a divorce settlement does not have an express renouncement to UNJSPF pension benefit entitlement.

(v) In line with the recommendation of the Pension Board and as approved on 23 December 2008 by the General Assembly. The final resolution, not yet published, will be released as A/Res/641 and placed on the Pension Fund’s website.

(c) A former spouse who, in the opinion of the Chief Executive officer, has met the conditions set out in paragraph (b) above shall be entitled to the widow's or widower's benefit under article 34 or 35 as the case may be, however, if the participant is survived by both one or more such former spouses and/or by a spouse entitled to a benefit under article 34 or 35, the benefit payable under article 34 or 35 shall be divided between the spouse and former spouse(s) in proportion to the duration of their marriages to the participant.

No change

 

 

(d) Article 34(f) and (g) shall apply mutatis mutandis.

No change

 

(e) The divorced spouse of a former participant who separated before 1 April 1999 and, in the opinion of the Chief Executive Officer, met all the other eligibility conditions in paragraph (a) and (b) above shall be entitled as from 1 April 1999 to a benefit equal to twice the minimum surviving spouse's benefit under article 34(a) subject to the proviso that the amount of such benefit cannot exceed the amount payable to a surviving spouse of the former participant.

(e) The [divorced] former spouse divorced *  before 1 April 1999 from a participant or former participant who separated before1 April  1999 and, in the opinion of the Chief Executive Officer, met all the other eligibility conditions in paragraphs (a) and (b) above shall be entitled to a benefit equal to [twice] three times the minimum surviving spouse's benefit under article 34(c), and to four times this benefit in the case of marriage to the former participant lasting 25 years or more subject to the proviso that the amount of such benefit cannot exceed the amount payable to a surviving spouse of the former participant. **

(e) As also proposed by FAFICS to the JSPB in July 2004, 2006 and 2008.

The FAFICS Council in July 2008 rejected the contention of the Secretary/CEO of the Fund that the adequacy of all minimum benefits be reviewed. The benefit in question (article 35bis(e)) warranted consideration in isolation as it was not a minimum benefit, but a benefit in its own right.

 

* If Article 35bis (a) is not modified as proposed, the 3 ½ first lines, from the words ‘The divorced’ to ‘former participant’ be replaced by the words: “The divorced spouse of a former participant who separated before 1 April 1999.” the rest of the proposal for modification stays the same as it is.

** In relation to Article 35bis (a) and (e) it should be noted that the Final Report of the Working Group charged with undertaking a fundamental review of the Pension Fund indicates that, although the Pension Fund has responded positively to the need to provide for a benefit to divorced surviving spouse of former participants in 1998, from the point of view of social justice, however, the situation cannot be fully satisfactory since the determination of the amount of the benefit is determined on whether the separation from active service of the former participant occurred before or after April 1999, and the Consulting Actuary had estimated that the cost of the extension of the benefit to all otherwise qualifying divorced surviving spouses would be relatively small - JSPB/51/R.30, paragraph 260.

N.B. Proposed additions are indicated by underlining and deletion appear within square brackets.

 

Additional Remarks

1. Article 35bis (a) and (e)

Problems connected with the implementation of Article 35bis (a) and (e) can be solved equitably for a former spouse of a participant separated from service before 1 April 1999 or after a divorce before 1 April 1999 if he/she, having met, in the opinion of the Chief Executive Officer , all other eligibility conditions in paragraphs (a) and (e) of Article 35bis, shall be entitled to a benefit equal to [twice] three times the minimum surviving spouse’s benefit under article 34(a), and to four times this benefit in the case of marriage to the former participant lasting 25 years or more.

2. Proposal for modification/elimination of 5 eligibility conditions

Article 35bis

(a) Change of reference date for the application of the article 35bis from separation from service to date of divorce.

(b) (i) 5 instead of 10 years of duration of marriage

(iii) Elimination of the condition that the death of a participant has to occur within 15 years of the date when divorce became final

(iv) Age limit: to add at the end of the paragraph: unless there are one or more dependent children resulting from the marriage in his or her custody.

(e)  The benefit in question to be granted in case of participant’s separation from service and/or divorce occurred before 1 April 1999 and benefit equal to 3 times the minimum benefit under Article 34 ( c) and 4 times if marriage lasting 25 years or more.

 

Effects of divorce under Article 35 bis (a), (b) and (e) of the Fund's Regulations

Case examples

Case 1

"A", a retired (before 1 April 1999) civil servant, 72 years old, married "Z" in 1968 in Germany, their common home country. "A" and "Z" came to Geneva in 1972 when "A" joined the U.N. system and started contributing to the Pension Fund. "A" and "Z" divorced in Geneva in 1980 and an alimony was granted to "Z" by court decision. Two children were born in this marriage. They were 2 and 6 years old at the time of the divorce. "Z" could not work and earn a pension of her own. She is now 65 years old. At the death of her ex-spouse she would get no more alimony payments and will not be entitled to a divorced spouse survivor's benefit, or to a twice the minimum surviving spouse's benefit under Article 34 (c) because: (1) she is not meeting one of the conditions in paragraph (b) of Article 35 bis which requires under sub-paragraph (i) 10 years of marriage during which contributions were paid to the Fund on account of the participant, and: (2) paragraph (e) of Articles 35 bis requires that all eligibility conditions of Article 35 bis (b) should be met. What would "Z" be supposed to do then without any financial means? "A" has not remarried before his retirement. After his death, nobody will be receiving the survivor's benefit.

Case 2

"W" and "L" married in 1959 in Germany, came to Geneva in 1961 where "W" joined an international organisation and started paying contributions to the Fund. Two children were born in this marriage. After 6 years of proceedings, the divorce was confirmed by the Tribunal de Lausanne in 1986. An alimony was to be paid to "L" during her lifetime. While married "L" did not work, taking care of the children and husband and therefore did not contribute to a pension scheme for herself.

During court proceedings, "W" refused to take out a life insurance as a substitute for alimony payment in case of his death. At age 70, "L" is dependent on alimony paid by her ex-spouse.

When he dies, payments will cease immediately and she would have to face poverty. Because her ex-husband retired before 1 April 1999, she would not be entitled under Article 35bis (a) to a divorced spouse’s benefit and would get under Article 35bis (e) just twice the minimum surviving spouse’s benefit, only US$ 600 monthly.

"W" remarried and his new spouse, also an international civil servant, will be entitled to get his survivor's benefit and her own pension while the former spouse of 25 years will get nothing. How long will it be possible for the UNJSPF Fund to arbitrarily attribute the survivor's pension earned during 25 years of marriage to an international civil servant by the first spouse to another spouse?

Case 3

"B" and "C" were married in France in 1943. "B" joined an international organisation in 1950 and contributed to the Fund during 28 years. They had 3 children. "B" retired in 1978 and, in 1981 their marriage was dissolved by a divorce decree of a French Court which awarded alimony to "C". When her ex-spouse died in 1996, "C" was deprived of alimony and did not have any right to a surviving spouse's benefit from the Pension Fund. It was a dramatic situation as she had not a pension of her own, having not worked, but just took care of the family, educating their 3 children and helping "B" with his career. For her survival she had only the "minimum vital" provided by the French social services.

In 1999, some Fund's Regulations have been modified in favour of divorced spouses, but "C"'s case was not included, because "B" retired before 1 April 1999. Finally, in December 2000, Article 35 bis (e) was approved by the General Assembly and "C" could get twice the minimum surviving spouse's benefit which is US $ 600 a month. It is far from being sufficient, especially after a 28 years contribution to the Fund during marriage. "B" remarried, but his second wife doesn't get anything from the Fund since their marriage took place after his retirement. It is a very sad and unbelievable story, and just for such cases the surviving divorced spouse's benefit should be not twice, but 4 times the minimum surviving spouse's benefit.

Case 4

"P" and "H" married in 1965 in Norway, both students. To finance the studies of her husband, "H" started working until the birth of their son in 1967. "P" worked until "H" got a job in 1972 at the French Embassy in Oslo in order that her husband could continue his education. In 1975 "P" joined HCR and "H" left her job to accompany him with their son in Senegal, Sierra Leone, Tanzania (during civil war there), countries with difficult and dangerous conditions of life, where she got malaria and severe ambiosis. In 1987, "P" is posted in Teheran. For security reasons (Iran-Iraq war) and to let their son continue his studies, he leaves alone for his mission and meets there another woman and soon after asks for divorce. "H", weakened by a difficult medical intervention, feeling low and stressed, with no lawyer to advice her, trusts her husbands promises to take care of her sickness insurance and old age insurance if she accepts a divorce without asking for damages. Their marriage is dissolved in 1988. "H", after having supported her husband for many years, accompanied him on his missions, got no sickness insurance, no life insurance, no alimony payments. "P" remarried in 1991 and died in 1994 and his second spouse gets the survivor's pension and inherited everything. It is only in 2002 that "H", after some delays, started to get the twice the minimum surviving spouse's benefit under Article 35 bis (e) which is hardly sufficient. She is almost 60 and had recently a difficult medical intervention. At her age no job is available. What kind of social justice is it if a spouse married 23 years, of which 13 years during which contributions were paid to the Fund, gets only a minimum, while the second wife after 3 years of marriage gets the whole surviving spouse pension?

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