While inheritance and property relations between common-law partners are the most frequently discussed legal issues in practice, employment rights, an equally important aspect, play a significant role in the everyday lives of such partners. The inconsistent treatment of common-law unions in various regulations creates room for divergent interpretations and practical dilemmas in the application of legal provisions.
The Concept of a Common-Law Union
The concept of a common-law union is defined by the Family Law. A common-law union is a long-term domestic partnership between a man and a woman who are not legally married and are free to marry (common-law partners). Under the conditions prescribed by this law, common-law partners have rights and duties equivalent to those of spouses.
Equal Rights for Common-Law Partners – Or Not?
In Serbian legislation, the rights of married and common-law partners are not entirely equal.
The Constitution of the Republic of Serbia equates common-law unions with marriage, but subject to the law. This constitutional provision clearly indicates that such equality is not unconditional and must be specifically regulated by separate laws.
One of the key laws where the rights of common-law partners are not equal to those of married partners is the Labor Law.
The following employment rights are granted to married partners under the Labor Law:
An employee is entitled to paid leave in the case of:
- the birth of their spouse’s child,
- serious illness of a close family member,
- death of a close family member.
Close family members include the spouse, children, siblings, parents, adoptive parents, adopted children, and legal guardians.
General acts or individual employment contracts may extend the duration of such leave or expand the circle of eligible persons. Employers may also grant leave for other relatives or individuals who live in the same household with the employee, as determined by the employer’s decision.
The spouse of an employee assigned to work abroad under international-technical or cultural-educational cooperation, or in diplomatic or consular missions, is entitled to suspend their employment rights and duties and to return to work with the same employer.
Employees are entitled to reimbursement of funeral expenses upon the death of a close family member, and close family members are entitled to the same benefit upon the employee’s death.
In this context, close family members include the employee’s spouse and children.
Although common-law partners are not explicitly recognized under the Labor Law, the Ministry of Labor, Employment, and Social Policy of the Republic of Serbia, in its opinion no. 011-00-514/2006-02 dated August 24, 2006, stated that the employer is obligated to reimburse funeral expenses in the event of the death of a common-law partner with whom the employee lives in a legally recognized common-law union, as defined by the Family Law.
This opinion is based on the Family Law, which affirms the constitutional principle of equating marriage with common-law unions. However, the legal equalization pertains strictly to family and marital relations and the rights and obligations derived from them, as regulated by the Family Law. It does not extend to rights and obligations governed by other laws, such as the Labor Law. Therefore, we respectfully disagree with the cited opinion.
Some employers have acknowledged certain employment rights for common-law partners through their specific collective agreements, although even these provisions often fall short of fully equating the rights of common-law and married partners.
For instance, the Special Collective Agreement for Employees in Local Government Units provides for paid leave in the event of the childbirth of a common-law partner, as well as in cases of serious illness or death of the common-law partner. On the other hand, the Special Collective Agreement for Higher Education grants the right to paid leave in the case of serious illness or death of a common-law partner, but only recognizes the right to leave for childbirth when the partner is a legal spouse, not a common-law partner.
In contrast to the Labor Law, other pieces of legislation do recognize common-law partners. The Health Insurance Law includes them among the close family members entitled to health insurance coverage, while the Pension and Disability Insurance Law grants common-law partners the right to a survivor’s pension.
Conclusion
Despite employers' discretion to interpret the Labor Law broadly in favor of the employee, the current legislation does not grant common-law partners the same rights as legal spouses under the Labor Law.
Until such rights are formally recognized by law, employers may, but are not obligated to, extend certain benefits to common-law partners through their internal acts, under the same conditions applicable to married spouses.
Author:
Milana Milojević, Senior Associate
Email: milana.milojevic@prlegal.rs; legal@prlegal.rs;