Divorce law in Austria: an overview

(Click here to read this post in Dutch.)

If a marriage no longer works, the Austrian courts offer several possibilities for divorce. This blog post contains a brief overview of these possibilities, i.e. of Austrian divorce law.

Contents of this post:

•  Types of divorce

• Consequences of a divorce

• International divorces

• Some practical tips

Types of divorce

The several types of divorce are laid down in the Austrian Marriage Act, the Ehegesetz (EheG). The three most important types are:

• Divorce by mutual consent (einvernehmliche Scheidung; § 55a EheG)

• At-fault divorce (Scheidung aus Verschulden; § 49 EheG)

• Divorce after separation (Zerrüttungsscheidung of Scheidung wegen Auflösung der häuslichen Gemeinschaft; § 55 EheG)

There are several other ways to end a marriage, for instance in case of deceit or sham marriages. This post will focus on the above-mentioned types, which are the most important in practice.

 Please note that these options also apply to couples who have entered into a registered partnership (eingetragene Partnerschaft).

Divorce by mutual consent

The easiest and most common type of divorce in Austria is the divorce by mutual consent, or the einvernehmliche Scheidung. This divorce is possible as soon as the spouses have lived separate lives for at least six months and are both believe that their marriage has permanently broken down.

With this option, there will be no court proceedings during which evidence is gathered. The court will as such not determine who caused the breakdown of the marriage to what extent. It is only necessary that both spouses conclude an agreement about the consequences of their divorce.

This agreement will have to cover the following topics:

• The division of marital assets

• Alimony for a partner

• Child support for any children

• An arrangement covering the custody of and future contact with any (minor) children

Two significant advantages of a divorce by mutual consent are the speed of the proceedings, the relatively lower costs and the relatively lower emotional burden in comparison to other types of divorce.

From a procedural perspective, this divorce is initiated by a mutual application to the court. A judge will then pronounce the divorce during a brief hearing, which often barely lasts thirty minutes. If the couple has any minor children, it is obligated by law to obtain counseling about the effects of the divorce beforehand.

At-fault divorce

Austria stands out in Europe as a country that still offers the possibility of an at-fault divorce, or a Verschuldensscheidung.

In order for a court to grant an at-fault divorce, two essential conditions will have to be met:

• Marital misconduct

• A breakdown of the marriage caused by this misconduct

This type of divorce requires that one of the spouses has engaged in significant marital misconduct (a so-called schwere Eheverfehlung) and that this conduct led to a permanent breakdown in the marriage. Under Austrian law, the conduct will as such need to have caused an unheilbare Zerrüttung with an expectation that the marriage will not recover from this.

What exactly constitutes marital misconduct will depend on the circumstances and has become the topic of a large amount of caselaw. Besides adultery and domestic violence, important examples are simply ignoring the other spouse and leaving the marital household on one´s own volition. The Austrian courts have also qualified other, less significant behavior – from gossiping to alcohol use – as misconduct.

If this misconduct is not acceptable to the other spouse, he or she will on basis of this misconduct need to file for divorce within six months after becoming aware of the misconduct. If this does not happen, the law assumes that the spouses have reconciled. In other words: if a spouse knows that the other half has cheated but does not act on this for a year, he or she will no longer be able to file a divorce lawsuit for this reason.

The marital misconduct must moreover have actually led to the permanent breakdown of the marriage. Conduct that a spouse does not consider to be disruptive cannot serve as a ground for divorce.

From a procedural perspective, an at-fault divorce is initiated by filing a lawsuit (Klage) by one of the spouses, which the competent court will serve to the other spouse. The court will then, over the course of one or more hearings, hear the spouses and any witnesses and gather other evidence. As soon as enough evidence has been gathered, the court will decide with a verdict whether the divorce is granted and whether the sued spouse has caused the divorce fully or in part.

It will, during the entire proceedings, always be possible to agree to a divorce by mutual consent. In addition, the sued spouse, too, can file his own lawsuit (a so-called Widerklage), or request that the other spouse is also found culpable for the divorce.

An important practical consequence of a fault-based divorce is, if one spouse has caused the breakdown of the marriage, possible alimony payments. The culpable spouse may have to make such payments if he or she is able to do so and if the other spouse does not have adequate income. The exact amount will depend on the income of both parties.

In special cases, alimony may also be claimed if no party has been clearly found culpable.

Divorce after separation

Another possibility is the divorce after separation, or more accurately the divorce after dissolution of the marital household (häusliche Gemeinschaft). This is possible if:

• The marital household has been dissolved for at least three years, and

• The marriage has permanently broken down, meaning that it can no longer be assumed that the marriage will be restored

If the spouse that has not filed for this divorce can prove that the breakdown was primarily caused by the other spouse and that the divorce would affect him or her significantly more, the court may dismiss the case.

If the marital marriage has been (factually) dissolved for at least six years, the court will have to grant the divorce.

From a procedural perspective, this type of divorce – like the at-fault divorce – is initiated by filing a lawsuit. The judge presiding over the case will then have to render a verdict after one or more hearings.

Consequences of a divorce

In Austria, a divorce can – like in other countries – have far-reaching consequences for the people involved. Some topics that one should keep in mind are:

• The division of assets and liabilities

• The custody of and contact with children

• Alimony and child support

• Pensions and social security

• Possible consequences for the immigration status of a spouse

If it is not possible to come to an agreement on the first four topics, Austrian law offers several possibilities. Proceedings can for instance be started for:

• The division of marital assets (the so-called Aufteilungsverfahren or division procedure); these proceedings must be initiated within a year following the divorce

• The custody of and contact with children

• The amount of alimony

• The amount of child support

These topics may already be an issue and give rise to proceedings before or during the divorce. They would then be conducted separate from the actual divorce proceedings.

International divorce

With international marriages, it is possible that the law (i.e. substantive law, or in other words about the divorce itself and not procedural law) of another country will be applicable during a divorce. This can have important consequences for the proceedings: the at-fault divorce is, for example, unknown in many European legal systems.

The so-called Rome III regulation (Regulation (EU) No. 1259/2010) has created a system to determine the applicable substantive law. According to this regulation, in principle the following law will apply:

• The law of the country in which both spouses are resident at the time of the divorce; or

• The law of the country in which both spouses were last resident, provided that their residence did not end more than one year before the divorce was initiated and one of the spouses is still resident in this country; or

• The law of the country of which both spouses are nationals; or

• The law of the country in which the divorce proceedings are initiated.

It is under certain conditions also possible for the spouses to jointly choose the application of the law of a certain country. It is important to know that the regulation does cover support and marital asset questions.

The Austrian Act on International Private Law (IPR-Gesetz) contains rules to determine the applicable law for other international divorces. In addition, a further EU regulation lays down rules for the determination of the competent court.

Some practical tips

A divorce is a decision that should not be taken lightly. Under Austrian law, there are also certain things one should, or rather should not do.

• Leaving the marital household: it is – as a divorce draws near – not recommended to leave the marital household at your own volition if your safety does not require it. Doing so could constitute marital misconduct. There are possibilities to do so without damaging your own position in later proceedings.

• Communication: it is also not recommended to treat the other spouse poorly, because this too can be used against you in later procedures. Ideally, any communication should be neutral.

• Documentation: for reasons of evidence, it is advisable to document any marital misconduct. This may include registering the times of misconduct, saving relevant documentation and chatlogs.

Legal assistance in Austria

I provide legal counsel and representation in divorce proceedings in Austria, of course fully in English. Feel free to contact me by using the form below, by sending an e-mail to office@vastenburg.at, or by calling me at 0043 6804446590.

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