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For 40 years a woman lived with her husband, a marriage in which they had six children. In those four decades, she dedicated herself to taking care of the home while he worked at the Caja Agraria.
In 1993 the man retired after more than 20 years of work in that company, an allowance he received until his death. But five years after he retired, due to the constant domestic violence that she suffered, physical and psychological abuse, the woman decided to leave him and went to live in Bogotá, with the help of her children.
Since she was financially dependent on her husband, He returned home in 1999, where they lived together for 5 more months, and then divorced. With a lawsuit, she managed to obtain a food quota that was paid to her until 2004, when he passed away (read also: 5-year cohabitation requirement for pension is not for everyone).
After his death, she asked for a survivor’s pension but they denied it stating that at the time of death, the two of them were no longer spouses, without any kind of pronouncement being made regarding the reasons that led to the breaking of the marital bond. That is why she filed a guardianship that was rejected, until it reached the Supreme Court of Justice.
The case remained in the hands of Ana María Muñoz Segura, magistrate of Chamber Number 4 of Labor Decongestion, who prepared a very important sentence in which it took into account the inequalities and violence suffered by women as a mandatory context framework when evaluating a case and administering justice.
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In her appeal, the woman who was denied a survivor’s pension said they did so without taking into account that the divorce was due to her husband’s fault. He also assured that a life in common continued to exist between the two after the separation in which he continued to accompany him until his death.
(Further: What is the survivor’s pension and who is entitled to it?)
The ruling agreed with the woman and assured that the Court did not take into account the mistreatment that she suffered for more than 40 years, her ex-husband beat her severely and abused her with vulgar and humiliating words. These acts of violence could not be dismissed just because she had not reported, because according to studies taken into account by the Court, only 20 percent of women who claimed to have suffered gender violence reported.
(Pasture: Retirement pension relief, to reimburse contributions for $ 3 billion)
For this reason, in the case of the woman who presented the guardianship, the high court affirmed that she is a subject of special protection, because she is elderly, does not have financial resources, because she was financially dependent on her ex-husband, and it is a matter of a victim of gender violence who with her unpaid work contributed to her ex-husband’s old-age pension.
But also, says the corporation, the court that denied guardianship did not take into account that although they were no longer married, she continued to assist and care for her ex-aggressor until her death. For this reason, the Court overturned the 2011 ruling that had denied him the allowance and ordered to pay his pension.
Arguments about gender inequalities
March of women for their rights.
To resolve this case, the Court, with the presentation of Judge Muñoz Segura, began with a key issue: it determined that a labor judge must take into account violence and gender inequalities when solving controversies in pension matters, because one of their obligations is to judge from a gender perspective. That is why he pointed out that the Court made a mistake in evaluating this matter and denying guardianship.
Thus, the Court He said that it is necessary for social security to give a response to the cases of women divorced due to domestic violence and economic that are later revictimized for not being able to access a survivor’s pension from the pensioner, a former partner who, with their unpaid work at home, helped him build his old-age pension.
(You may be interested in: What covid-19 says about gender inequality in the region).
The high court noted that the right to equality implies understanding that pension systems “are not gender neutral” since its architecture is based on a traditional model that hides elements that “generate inequity for women.”
These gender inequalities in the pension system, says the Court, are due to the different considerations that exist about productive and reproductive work, which consequently creates differences on the contributions of men and women to an old-age pension.
(In other news: Supreme Court evaluates attempted acid attacks).
These inequalities also lead to the number of women who do not receive an income is higher than that of men. Although the qualification gap (that is, studies) is almost closed, -because even the educational levels of women today are higher than that of men-, “this advance has not been reflected in the labor market, where the distinction based on gender is maintained and women are at a disadvantage “. Thus, there is “structural discrimination, lack of access to the labor market and higher levels of informality for them,” says the corporation.
There is structural discrimination, lack of access to the labor market and higher levels of informality for
they
But the second reason is that women not only do they have a harder time entering the labor market, but they also have trouble staying in it for a longer time and thus be able to access a pension, which often leads to the protection of their old age being the beneficiaries of their colleagues, depending on them.
This marginalization of the labor market, and therefore the general pension system, is seen in the figures that show that of the total population of working age, women represent 65.2 percent of the inactive economic population, and 42.8 percent are active. Among those that are active, 55.7 percent are unemployed, while in the case of men that percentage is 44.3 percent. Those are the figures that DANE presented for 2019, that is, before the pandemic, a crisis that has even exacerbated the gaps between men and women.
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COVID-19).
The difference in inactivity is seen in the social distributions of work based on gender stereotypes, where inactive men were studying while women were studying because they were engaged in housework.
On the other hand, informality is also higher for women. The Court indicates that in 2018 informality for women reached 49.35 percent while, for men, it was 47.2 percent.
All of this led the high court to conclude that Although the rules that regulate the Social Security System are shown to be neutral, in reality they are not because they do not take into account the differences between male and female contributors. Thus, there is no regulation on the survivor’s pension in cases of divorce and marriage annulments that takes gender perspectives into account. In addition, according to the Court, until now Congress has not addressed the case of women victims of gender violence against the recognition of economic benefits.
When differentiating by sex, the affiliations to the pension system are mostly men. In the Individual Savings with Solidarity Scheme (private funds) 42.5 percent are women and 57.5 percent are men. And in the medium premium regime (Colpensiones), 47 percent are women and 53 percent, men.
In addition, according to 2018 figures, 30.6 percent of men of retirement age were retired, while for women that figure was only 21.3 percent. And the gap is also seen in the pension amounts, since their average allowance is 80 percent of the average allowance for men.
All of this leads to women in the social security system often being dependent on their colleagues or providers, which leads them to have little agency or freedom due to the lack of their own benefits.
Women in the social security system are often dependent on their colleagues or providers, which leads them to have little agency or freedom due to the lack of their own benefits
These were the reasons why the Court spoke of the need for recognition of the joint construction of the pension in the cases of unpaid work of women, something necessary so that women are not left unprotected after a divorce, separations that have been increased.
That is why the Court established a jurisprudential criterion since 2011 according to which the pension is granted proving 5 years of coexistence at any time, even if the spouse is no longer living with his partner when his death occurs.
Taking into account all these situations, says the Court, makes a “counterweight” in the construction of domestic work and home care that, due to these gender stereotypes, has been associated for so long with female identity.
JUSTICE
