July 2001

It is somehow surprising that the item "Entitlement to Survivors' Benefits for spouses and Former Spouses" appears in the note by the Secretary under "Survivors' Benefits" closely entangled with the issue of "domestic partnership". Obviously they do not belong together.

As regards the issue of "domestic partnership" matters such as spousal dependency allowances, sickness benefits, payment of home leave, repatriation grant, etc..., have to be first discussed and decided upon by the concerned administrative, personnel and legal divisions of Member Organisations within the UN system, including the Specialised Agencies, before the question of entitlement to survivors' benefits for domestic partners could be usefully discussed by the Pension Board.

The question whether former UN spouses should be entitled to a survivor's benefit has been under consideration by the UNJSPB and other United Nations organs since 1978. UNWG's cooperation on this matter with UNJSPF, CCAQ, FICSA, FAFICS, UNESCO, etc. goes back to late 1991. While recognising that in July 1998, at the 49^th session of the Board, progress had indeed been made with respect to securing some rights for some divorced spouses, the very fact that entitlement to a divorced surviving spouse's benefit would arise only in cases where a participant or former participant separated from service on or after 1 April 1999 made further action necessary. The decision was all the more unjust as the new regulations pertaining to marriage after retirement permitted retroactive election (within 180 days) by the former participant to provide a periodic benefit for life in cases of marriage contracted after retirement (article 35ter).

In July 2000 the Pension Board recommended and the General Assembly in December 2000 approved, inter alia, an amendment to article 35bis consisting of a new sub-paragraph (e) that would provide a limited benefit also to the "closed" group of divorced surviving spouses of former participants who had separated from service prior to 1 April 1999 and otherwise met all the eligibility conditions established in article 35bis.

Some basic improvements, although slowly, have been so far achieved. Still, important issues remain to be positively addressed as a matter of urgency, for the sake of clarity and fairness.

The new sub-paragraph (e) of article 35 bis entitles, under certain eligibility conditions, the divorced spouse of a participant who separated from service before 1 April 1999, as from 1 April 1999, to a benefit equal to twice the minimum surviving spouse's benefit under article 34(c). It is not clear, however, whether sub-paragraph (e) should apply equally to divorces which took place before or after separation from service of the participant or whether the participant or former participant had remarried before/after separation or before/after the entry into force of article 35bis(e).

In some of the above cases, when the former participant is still alive at the time of entry into force of sub-paragraph (e) of article 35bis, there would be no acquired right yet of the "current" spouse - who may also become a divorced spouse - to any particular amount of the survivor's benefit since such a right only becomes unconditional upon the death of the participant or former participant. Therefore, in such cases, there should be no obstacle to a division of the survivor's benefit between the surviving spouse and the divorced surviving spouse/spouses in accordance with article 35bis, without resorting to an additional benefit. Similar thinking was already expressed in the UNESCO Staff Pension Committee note (JSPB/SC/182/R.18/Add.1) in June 1999 and by FAFICS note to the Board in 1990 (JSPB/40/R.20, para. 28, p.12).

The division of the survivor's benefit between the current and the divorced spouse/spouses would reduce the total amount of the "additional" benefit for the "closed" group of divorced surviving spouses, limited to cases where the participant or retired participant died before the entry into force of the new provisions. Thus making it also easier to set the "additional" benefit at three times the minimum surviving spouses benefit and, for divorced surviving spouses whose marriage lasted at least 25 years, make it four times, as proposed by FAFICS (JSPB/50/CRP.4) and strongly supported by FICSA and UNWG-Geneva. One should not forget also that if there is a small additional liability for the Fund, this is an unavoidable consequence of the Fund's inability or unwillingness to find a solution to the problem for almost 20 years.

Furthermore, if a former participant who separated from service before 1 April 1999, divorces after the entry into force of Article 35bis(e), remarries and elects to provide a periodic benefit for life under article 35ter to a spouse who was not married to him/her at the date of separation, he/she will be entitled eventually after just one year of marriage to such a widow/widower benefit for life and will keep it also after a remarriage under article 34(f), while the spouse of long years of marriage will be only entitled to twice the minimum surviving spouse's benefit (US $ 600 a month)! Such an unscrupulous treatment of the old divorced spouses who accompanied their spouses (international civil servants) abroad over long periods of time, raised their children, supported their career, etc., thus "earning" at least an entitlement to a decent survivor's benefit, cannot be acceptable any more, in the twenty-first century.

For the sake of justice and clarity, it is very important to modify the eligibility conditions in Article 35bis which are too restrictive and apply to divorced spouses of former participants who retired either before or after 1 April 1999. It creates sometimes anomalous and unfair situations - unacceptable discriminations against older former spouses in favour of new, younger spouses. Under Article 35bis (b)(i), for example, a divorced spouse who was married to a participant retired either before or after 1 April 1999, during nine years, instead of the ten years required, during which contributions were paid to the Fund on account of the participant, will not be entitled to a benefit either under Article 35bis (c) to a widow's/widower's benefit or to a benefit equal to twice the minimum surviving spouse's benefit under Article 35bis (e), even if there was a dependent child from the former spouse marriage to the participant at the time of divorce, she/he could not work therefore, and the participant or former participant was under a legal obligation to pay maintenance to the former spouse. However, in case of a remarriage of the participant, even a few months before retirement, the new spouse shall be entitled to the widow's/widower's pension benefit, with no conditions as to the number of years of marriage during which contributions were paid to the Fund, or age.

The other eligibility criteria appear also to be purely arbitrary, aiming at a confiscation of vested rights of the former older spouses, in some cases, in favour of the Pension Fund, in other cases, in favour of the younger new spouses. Therefore they should be modified in accordance with FAFICS proposals (JSPB/50/CRP.4, 5 July 2000), strongly supported by FICSA, UNESCO, WHO, etc., as follows:

• - Elimination of paragraph (b)(ii), stating that the former spouse had not remarried;

• - Elimination of paragraph (b)(iii), stating that the participant's death occurred within 15 years of the date when the divorce became final;

• - Adding to paragraph (b)(iv), after the words "whereby the former spouse is only entitled to a benefit after she/he reached the age of 40" the words "unless there is a dependent child from the former spouse's marriage to the participant".

There are many more unforeseen examples of unequal treatment resulting, partly, from hastily adopted wording of the new provisions; it is therefore proposed that a study be prepared by the Secretariat based on experience of such anomalies and injustices for discussion by the Board in July 2002, and adoption of recommendations for adequate modifications to the General Assembly for adoption at its session in 2002, in compliance with General Assembly Resolution, doc. A/C.5/55/L.14, Part V - Entitlements to survivor's benefits for spouses and former spouses - section 6 of which "Requests the Board to continue the supervision with these issues and to report thereon to the General Assembly at its fifty-seventh session". Other such studies could be also provided by concerned groups, including the UNWG-Geneva.

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