q0ago

Posted on Sep 20

ECHR Rulings and Same-Sex Partnerships in Serbia

Serbia’s Marriage Ban Is Not the Legal End of the Story

Serbia’s constitutional definition of marriage as a union between a man and a woman is often treated as the final word on same-sex relationship recognition. Politically, that framing is useful: it lets officials collapse every reform proposal into a debate about marriage, tradition, and constitutional identity. Legally, it is incomplete.

The European Court of Human Rights has drawn a line that matters greatly for Serbia. The Court has not required every Council of Europe member state to open marriage to same-sex couples. It has, however, increasingly required states to provide same-sex couples with a legal framework that recognizes and protects their relationships. That distinction is the pressure point.

For Serbia, the immediate legal question is not whether two men or two women can marry in Belgrade next month. The sharper question is whether the state can continue offering no legally meaningful status at all: no registered partnership, no automatic inheritance, no family pension, no next-of-kin status, no coherent route for shared property, and no default protection when one partner is hospitalized or dies.

Within the Serbian legal landscape, that difference between marriage and recognition is not technical hair-splitting. It is the difference between a constitutional amendment that is politically remote and an ordinary partnership law that could be passed without redefining marriage.

What the European Court Has Actually Said

The Strasbourg case law has developed gradually, but the direction is now clear.

In Oliari and Others v. Italy in 2015, the European Court of Human Rights held that Italy violated Article 8 of the European Convention on Human Rights, which protects private and family life, by failing to provide any legal recognition for same-sex couples. The Court did not say Italy had to create same-sex marriage. It said the absence of a legal framework left couples without adequate protection for stable family relationships.

That was a major shift. Earlier cases had acknowledged that same-sex couples could enjoy family life under the Convention, but Oliari made the lack of recognition itself a human rights problem.

The principle became harder for states to dismiss after Fedotova and Others v. Russia, decided by the Grand Chamber in 2023. The Court confirmed that member states have a positive obligation under Article 8 to provide a legal framework allowing same-sex couples to have their relationships recognized and protected. The form of that framework remained within each state’s margin of appreciation. The obligation itself did not.

That means a state may choose civil partnership, registered partnership, life partnership, or another legally defined status. It may reserve the word marriage for opposite-sex couples if its domestic law does so. But it cannot simply leave same-sex couples in legal nonexistence.

The Court has since applied the same logic in cases involving Romania, Bulgaria, and Poland. The regional message is consistent: social controversy, religious opposition, or a constitutional preference for heterosexual marriage does not erase the state’s duty to provide a practical legal structure for same-sex couples.

Why Serbia’s Constitution Does Not Block a Partnership Law

Article 62 of the Serbian Constitution defines marriage as a union between a man and a woman. That provision is a major barrier to marriage equality. It is not, by itself, a ban on every form of same-sex relationship recognition.

A carefully drafted partnership law would not need to call same-sex unions marriages. It would not need to alter religious doctrine or require churches to solemnize anything. It could establish a civil status administered by the state, with rights and duties tailored to couples who share a household, finances, caregiving responsibilities, and long-term life plans.

That is exactly why the repeated claim that partnership legislation is unconstitutional deserves scrutiny. A law recognizing same-sex partnerships does not redefine marriage unless it says it does. Croatia’s legal structure illustrates the point: marriage remains constitutionally defined as opposite-sex, while life partnerships provide many practical protections to same-sex couples. Montenegro has taken a similar route with registered partnerships, even though implementation has been uneven.

Serbia could do the same. The constitutional marriage clause narrows the path, but it does not close it.

The Minimum Legal Framework Cannot Be Symbolic

A token law would not solve the ECHR problem. The Court’s concern is not whether a state invents a label. The concern is whether same-sex couples receive real, usable protection.

A Serbian partnership law designed to withstand human rights scrutiny would need to cover the ordinary legal events that define family life. At minimum, it should address:

registration before a public authority
mutual duties of support between partners
property acquired during the partnership
inheritance and protection from forced exclusion by distant relatives
tenancy continuation after a partner’s death
hospital visitation and medical decision-making
access to health insurance through a partner where comparable spousal rules exist
tax treatment for transfers between partners
pension survivor benefits
procedures for dissolution, maintenance, and division of shared assets

The difference between a symbolic law and a functional law shows up in crisis. If a partner is unconscious after a traffic accident, legal recognition determines who can receive medical information and who can make urgent decisions. If one partner dies without a will, recognition determines whether the surviving partner keeps the apartment or faces claims from relatives who may have rejected the relationship for years. If one partner spent a decade doing unpaid care work, recognition determines whether the law sees that contribution at all.

The ECHR cases are built around precisely these ordinary harms. The Court is not focused on ceremony. It is focused on whether the state leaves couples without a stable legal identity when life becomes administratively, medically, or financially serious.

The “Fifty Papers” Problem Is a Human Rights Problem

Opposite-sex spouses receive a powerful administrative shortcut. One marriage certificate is recognized across hospitals, courts, tax offices, pension funds, banks, and inheritance proceedings. Same-sex couples in Serbia must approximate that status through private documents: powers of attorney, wills, co-ownership contracts, notarized declarations, and medical authorizations.

Those documents can help, but they are not equivalent.

A will can be challenged. A power of attorney may be ignored in a hospital corridor by staff uncertain about its scope. A co-ownership contract protects only the assets it specifically covers. A private agreement cannot create survivor pension rights where the statute does not recognize the relationship. Nor can private paperwork reliably recreate the public status of family membership.

This creates a class divide. Couples with money, education, access to LGBTQ-competent lawyers, and confidence navigating notaries can build partial protection. Couples without those resources remain exposed. Marriage, or an equivalent civil status, compresses dozens of legal vulnerabilities into one recognized public act. Serbia’s refusal to provide any comparable status forces same-sex couples to buy fragments of security one document at a time.

That is not merely inconvenient. Under the logic of the ECHR case law, it is evidence that the state has failed to provide effective respect for family life.

Foreign Marriages Do Not Solve Serbia’s Obligation

Some Serbian couples marry or register partnerships abroad. That may carry emotional value, and it may matter if the couple later moves to a country that recognizes the relationship. It does not currently give the couple a secure legal status inside Serbia.

European human rights law does not require Serbia to register a foreign same-sex marriage as a Serbian marriage. But the Court’s reasoning in foreign-recognition cases points toward a narrower obligation: the state must not leave the couple with no recognition whatsoever. A country may downgrade the foreign marriage into a domestic partnership category, but it needs some category capable of producing legal effects.

That matters for couples who marry in Spain, the Netherlands, Slovenia, or elsewhere and then return to Serbia. The issue is not whether Serbia must use the word marriage. The issue is whether Serbian institutions can treat the relationship as legally irrelevant in every setting.

As ECHR doctrine develops, that position becomes harder to defend.

Serbia’s Likely Legal Exposure

A strong case against Serbia would not need to ask Strasbourg for full marriage equality. A more targeted claim would argue that Serbia violates Article 8 by failing to provide any legal framework for same-sex couples.

The factual record would be straightforward:

Same-sex marriage is constitutionally unavailable.
No civil partnership or registered partnership exists.
Foreign same-sex marriages and partnerships have no domestic legal effect.
Private documents provide only partial, expensive, and uncertain protection.
Same-sex couples are excluded from multiple core areas of family law, inheritance, pensions, taxation, and medical decision-making.

That record closely resembles the pattern that has led to findings against other European states. Serbia could argue social disagreement, constitutional tradition, or political sensitivity. Those arguments have steadily lost force in Strasbourg when used to justify total non-recognition.

The Court still gives states flexibility over the design of the legal framework. It does not micromanage every benefit. But the absence of any status is the hardest position to defend.

What a Constitutionally Careful Serbian Law Would Look Like

A realistic Serbian reform would probably begin with civil partnerships, not marriage. The law could be drafted to avoid direct conflict with Article 62 while still meeting the core ECHR requirement.

The strongest version would include several design choices.

First, it would create a public registration system through municipal authorities. Couples need a status that institutions can verify quickly, not a bundle of private contracts that each official must interpret from scratch.

Second, it would harmonize related laws at the same time. Partnership recognition means little if inheritance law, pension law, tax law, health care regulations, and property law remain unchanged. Montenegro’s experience shows the danger of passing a headline reform without aligning the administrative machinery beneath it.

Third, it would use clear language on family-related rights. If hospitals, courts, and pension funds are left to guess whether a partner counts as family, many will default to exclusion.

Fourth, it would provide dissolution rules. Recognition is not only about creating relationships; it is also about ending them fairly. Partners need rules for shared property, maintenance, debt, and housing when relationships break down.

Fifth, it would include implementation deadlines and training duties for public bodies. Rights that exist only in the Official Gazette often fail at the counter, the ward desk, or the local registry office.

Such a law would not satisfy every demand of equality advocates. It would not be full marriage equality. But it would materially change daily life and place Serbia in a far stronger position under European human rights law.

The Real Meaning of the ECHR Pressure

The practical effect of the ECHR rulings is not that Serbian same-sex couples can immediately obtain marriage licenses. They cannot. The effect is subtler and more durable: Serbia’s policy of total non-recognition is becoming legally obsolete.

Officials can still delay. They can keep describing partnership laws as politically premature. They can invoke tradition, religious sentiment, or constitutional caution. But the European legal baseline has moved. The debate is no longer only about whether Serbia wants to recognize same-sex couples. It is increasingly about how long Serbia can justify refusing to recognize them at all.

For couples, the immediate advice remains pragmatic: use wills, powers of attorney, co-ownership agreements, and medical authorizations wherever possible. Those tools matter. But they should be understood as temporary scaffolding, not a substitute for equal legal status.

The central ECHR lesson is that family life does not become less real because domestic law refuses to name it. Serbia’s constitution may reserve marriage for heterosexual couples, but European human rights law is pressing toward a separate and unavoidable requirement: same-sex couples must have a legal home.

DEV Community