We will examine whether an employed person, married to the biological mother of a child under 6 years, having adopted it, is eligible for maternity leave and the corresponding economic benefit, but has been living prior to the child, and although at the time the natural mother has enjoyed the break and maternity benefit after delivery.
The factual situation which we subject to analysis has been resolved by the Supreme Court, Social Hall, in a decision to unify doctrine of September 15, 2010. They tested the following facts:
1. º The worker Araceli is in a position high in the general scheme.
2. No. That on July 3, 2006 requested the direct payment of maternity benefit by adopting lower Julia, born on March 26, 2001.
3. º That the child is biological daughter Rosario.
4. No. That is a stable partner Araceli Rosario, as stated in notarial deed of February 27, 2006 but started living together in 2004.
5. No. That decision dated June 6, 2006 the Court of First Instance number 19 of Barcelona agreed to the adoption by Araceli on smaller mother Julia in condition.
6. º That the Company X recognizes Araceli rest for adoption on June 14, 2006.
7. No. That by administrative decision of 19 July 2006 the Provincial Directorate of National Institute of Social Security denied the application direct payment of maternity benefit
adoption of the child Julia, to be built and integrated it in the family unit, with no need for integration that is based on the maternity leave for foster care or adoption. Appeal the administrative decision recognizing the right to maternity benefits by the Social Court # 8
Barcelona, \u200b\u200bin a ruling dated March 26, 2007. Brought then appealed by the Provincial Directorate of National Institute of Social Security estimated in the same sentence of 20 February 2009. On appeal
unification of doctrine by the worker, is issued by the Supreme Court decision dated September 15, 2010, estimating the resource, recognizing the right to maternity allowance of adoption.
To resolve the question the Supreme Court of existing regulations on the state of suspension of the employment relationship by adoption of a child under six years, and the Social Security regulations on the provision of maternity and adoption.
suspension situation of the employment relationship provided for in Article 45 of the Statute of Workers (hereinafter ET), where in paragraph 1.d) shows that the employment contract may be suspended for maternity, adoption, foster care children under six years. In parallel the ET Article 48.4 provides that in cases of adoption and foster care
, whether pre-permanent, less than six years, the suspension will last sixteen uninterrupted weeks expandable, in the event of adoption or fostering multiple in two weeks for each child after the second, told the election worker, either from the administrative or judicial decision
placement, well after the court decision that the adoption.
On the other hand, with regard to the economic provision of maternity, Article 133 bis of the General Security Social (General Social Security Law) and Article 2 of Royal Decree 295/2009 of 6 March, for the purposes of maternity benefit situations are considered protected maternity, adoption and foster care, permanent
whether pre-or simple provided that in this case, the duration is not less than one year, and although these are temporary foster care during the rest periods that benefit from such situations as provided in section 4 of Article 48 of the revised text of the Statute Workers. In Article 133 ter of the
LGSS and Articles 3 and 5 of Royal Decree 295/2009 of 6 March, generally require two conditions to be accessed a maternity benefit, first, that the worker is in a position higher or an equivalent situation in the date of the event, and secondly, to meet the required gap, which will depend on the age
the worker. Lack for workers aged between 21 and 25 years, is set to 90 days within the seven years immediately preceding the date of the administrative or judicial decision on foster care or court decision establishing the adoption (triggering event), or alternatively, a contribution period of 180 days during the working life. For workers over 26 years lack required is 180 days within the seven years immediately before the triggering event, or alternatively 360 days in their working lives. Finally, for those under 21, does not require any deficiency.
Thus, the legal regulation of the right to maternity leave, and the perception of the subsequent adoption benefit if set four conditions, namely: First, the concurrence of the state-protected-adoption, second Instead, enjoy the rest period provided for in Article 48.4 of the Statute of Workers
-16 weeks, thirdly, the worker found high in Social Security or an equivalent situation high, and in fourth place, having covered a minimum period of contribution or lack.
Well, if you meet these requirements to the Supreme Court bears the maternity benefit, but the fact of having previously lived with the adoptive parent the adopted child is a legal impediment, and this for several reasons: First, because in the legal regulation of both the suspension of work for maternity
relationship as the relevant social security benefit is not established as a requirement that the child had not previously been integrated into the family unit. Second, because in cases of refusal, cancellation and suspension of the maternity benefit of Article 133 d of LGSS and Article 11 of Royal Decree 295/2009 of 6 March, is not regarded as grounds for refusing the fact of living after the adopter with the child. Third, because the civil law of adoption (Article 176 of the Civil Code) provides for situations in which there has been prior living with the adoptee, the adoption of third-degree relatives of children of the spouse of the adopter, having been the one adopted under the aegis of the adopter, etc. Finally, in fourth place, the fact that he enjoyed the biological mother of the maternity benefit after birth started no provision for the adoption to be facing successive factual situations, each of which generates the corresponding provision if they meet legal requirements.
0 comments:
Post a Comment