Extraordinary leave and cohabitation: the Constitutional Court extends welfare protections
By Judgment No. 197 of 23 December 2025, the Constitutional Court has declared the constitutional illegitimacy of Art. 42, para. 5 of Legislative Decree No. 151/2001, extending the right to extraordinary paid leave (congedo straordinario) for the assistance of a disabled partner to de facto cohabitants (conviventi di fatto), including for periods prior to the 2022 reform.
The decision is rooted in the necessity to protect the right to health and the provision of care for individuals with severe disabilities within their primary life community, irrespective of a formal marital bond. By recognising the role of the de facto partner as a family caregiver, the Court has equated de facto families with those based on marriage for the purposes of the biennial paid leave. This landmark ruling paves the way for the recognition of backdated indemnity claims for numerous workers, consolidating an inclusive welfare model.
Factual Background and Regulatory Context
The case originated from an appeal against INPS (the National Social Security Institute) by a worker who had provided care to a de facto partner with a severe disability during a period preceding their marriage. The social security institute had denied the indemnity for the period of "more uxorio" cohabitation, granting it only from the date of the formal wedding.
The applicable regulatory framework is Art. 42, para. 5 of Legislative Decree No. 151/2001. In its pre-2022 version, the statute provided an exhaustive list of eligible beneficiaries that excluded de facto partners. While the 2022 Reform (Decree 105/2022) formally equated cohabitants with spouses, it left a protection gap for claims arising from prior periods.
The Legal Question: Equal Treatment of Domestic Partnerships
The Court of Cassation raised questions of constitutional legitimacy, citing violations of Articles 2, 3, and 32 of the Italian Constitution. The central issue concerned the unreasonable discrimination between families based on marriage and de facto families—defined as "social formations" where individuals develop their personality.
The referring judges argued that limiting assistance solely to marital relationships unfairly compromises the right to health of the disabled person, who should be entitled to receive care within their actual household. The Constitutional Court was thus called to determine whether the absence of a formal bond could justify exclusion from such a significant social protection measure.
The Ruling: Substance Over Form
In Judgment No. 197/2025, the Court ruled the exclusion of de facto partners unconstitutional. The Court reaffirmed that the psychological and physical health of a person with a disability is an inviolable right that cannot be contingent upon the legal nature of the emotional bond with the caregiver.
The Court emphasized several key principles:
- Dignity of Social Formations: De facto cohabitation enjoys constitutional protection as a venue for the fulfilment of social solidarity duties.
- The Right to Care: The primary objective of the leave is the protection of the disabled person; therefore, the civil status of the caregiver cannot be a discriminatory factor.
- Evolution of the Family Concept: Consistent with the jurisprudence of the European Court of Human Rights (ECHR), the notion of "family life" transcends the formal bond of marriage.
Operational and Practical Implications
This ruling has an immediate impact on pending litigation and reimbursement requests concerning periods prior to August 2022. Workers who were in a documented de facto cohabitation may now claim previously denied indemnities, provided they meet the requirements of shared residency and the severity of the partner's disability.
For employers and legal practitioners, the judgment definitively clarifies that there is no longer any distinction between spouses and cohabitants in the administration of extraordinary leave. The decision marks a shift towards protecting the substance of emotional bonds and the right to care, overcoming formalisms that for years limited access to fundamental social security benefits.
