Kostelka: Widow's pension refused by law
Widow´s pension refused by law
ORF-Series "Bürgeranwalt" (“Advocate for People”) – Broadcast of June 14th 2008
Long lasting and happy marriages are in today`s times already something special. Mrs. J.H. has asked the Ombudsboard for help in her case, in which the law causes disadvantages for a long holding marriage compared to a much shorter one.
In 1985 at the age of 26 Mrs. H. married Dr. E.H., the then 68 year old of long parish doctor of a municipality in Upper-Austria. The marriage lasted for 21 years until the death of the husband in September 2006.
Yet during the the lifetime of Dr. H. the question of a widow`s pension, coming from his function as parish doctor, arose, the couple found out that the Upper Austrian Gemeindesanitätsdienstgesetz, which regulats the claims for community doctors, does not provide such a pension, if the age difference between the spouses is more than 25 years. If the age difference is lower the widow can receive such a pension if the marriage lasted for over 5 years, as if a child emerges during marriage or is legimitized through marriage, which was not the case.
According to Ombudman Dr. Peter Kostelka this unfair and illogical scheme is clearly unconstitutional, because without consideration of the duration of the marriage it is a volation of the principle of equal treatment. During the television programme on June the 14th 2008 he noticed that in similar laws no such regulations, which in a unfair manner only consider the age difference and not the length of the marriage, accur. These laws on the contrary all contain provisions for the case that the marriage holds a certain amount of time.
Mrs. H. also has a feeling of being disadvantaged because in order to take care of her sick husband she had to abandond her wellpaid work and in the last few years had a job, where she received less moneythan before. This is also enhanced by the fact that Dr. H. got no fee for his services as town doctor, but in meeting the eligibility criterias received a pension. These circumstances show that Mrs. H for financial reasons depends on the widow`s pension.
Ombudsman Dr. Kostelka appealled during the programme to the representative of Upper Austria to initate a retroactive amendment to avoid for Mrs. H, who has now requested for a widow`s pension, the process of going to the Constitutional Court, which would last some years.
Hofrat Dr. B. expressed the the intention of the province of Upper Austria, to avoid such cases in the future by a retroactive amendment of the Gemeindesanitätdienstgesetz. This retroactive change will be in such a manner, that people like Mrs. H. will receive their widow`s pension with the on the death of the husband following month.