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Last update: 02-08-2007
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Divorce - Austria

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TABLE OF CONTENTS

1. What are the conditions for obtaining a divorce? 1.
2. What are the grounds for divorce? 2.
3. What are the consequences of a divorce as regards 3.
a) the personal relations between the spouses a)
b) the division of property of the spouses b)
c) the minor children of the spouses c)
d) the obligation to pay maintenance to the other spouse d)
4. What does the legal term ‘legal separation’ mean in practical terms? 4.
5. What are the conditions for legal separation? 5.
6. What are the legal consequences of legal separation? 6.
7. What does the term ‘marriage annulment’ mean in practice? 7.
8. What are the conditions for marriage annulment? 8.
9. What are the legal consequences of marriage annulment? 9.
10. Are there alternative non-judicial means for solving issues relating to the divorce without going to court? 10.
11. Where should I lodge my application for divorce/legal separation/marriage annulment? Which formalities must be respected and which documents should I attach to my application? 11.
12. Can I obtain legal aid to cover the costs of the procedure? 12.
13. Is it possible to appeal against a decision relating to divorce/legal separation/marriage annulment? 13.
14. What should I do to have a decision on divorce/legal separation/marriage annulment issued by a court in another Member State recognised in Austria? 14.
15. To which court should I turn in Austria to oppose the recognition of a decision on divorce/legal separation/marriage annulment issued by a court in another Member State? Which procedure applies in these cases? 15.
16. Which is the applicable law in a divorce proceeding between spouses who do not live in Austria or who are of different nationalities? 16.

 

1. What are the conditions for obtaining a divorce?

Austrian Law recognises three kinds of divorce: divorce on the grounds of a fault, divorce following separation for a period of at least three years and divorce by mutual consent.

A spouse can petition for divorce if the marriage has broken down so irretrievably as the result of a serious marital fault or dishonourable or immoral conduct on the part of the other that restoration of a relationship which is in essence equivalent to marriage cannot be expected.

If the spouses have not cohabited for a period of three years, either spouse may petition for divorce on the grounds that the marriage has broken down irretrievably.

If the spouses’ relationship has been in abeyance for a period of at least six months, they both admit that the marriage has broken down irretrievably and they have agreed to a divorce, the spouses may jointly petition for divorce.

2. What are the grounds for divorce?

The essential ground for divorce is the irretrievable breakdown of the marriage. Such breakdown may be the result of a serious marital fault on the part of either partner, especially if one spouse has been unfaithful or has inflicted physical violence or serious emotional suffering on the other. The other spouse may petition for divorce even if the behaviour cannot be regarded as a marital fault because it is due to a mental disturbance, but the marriage has nevertheless broken down to the extent that the restoration of a relationship which is in essence equivalent to marriage cannot be expected, or if either spouse is mentally ill or suffers from a highly infectious or contagious disease or a disease which excites revulsion. In all such cases the spouse who is petitioning for divorce must demonstrate the presence of the grounds asserted. However, if the spouses have not lived together for a period of three years, a marital fault need not be asserted or demonstrated.

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3. What are the consequences of a divorce as regards

a) the personal relations between the spouses

In principle both spouses will retain the surname they had when they were married. However, if either spouse adopted the other’s surname when the marriage was contracted, he or she may still resume his or her previous surname.

b) the division of property of the spouses

In principle the spouses are perfectly at liberty to decide on the fate of their property. This may be done either by mutual renunciation (whereby the legal separation of property during marriage is upheld once the marriage has been dissolved) , by the division of any property acquired by contract and held in common or by the transfer of property from one spouse to the other.

If the spouses have not come to any agreement in this respect, either of them may petition the courts to divide certain property in common ownership. What is known as ‘matrimonial property’ and ‘matrimonial savings’ will be subject to division. As well as the matrimonial home and household goods, matrimonial property includes anything which was used by both spouses in pursuance of their lifestyle when they were married. Matrimonial savings include any investments which the spouses accumulated when they were living together as man and wife.

Excluded from division, for example, is anything which the spouses brought to the marriage, or acquired as the result of a death or as a gift from a third party, as is anything which the spouse had solely for his or her own use or in pursuit of his or her occupation, including companies and shares in companies, unless they merely represent investments.

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The court will distribute the assets equitably, giving due consideration to all of the relevant circumstances, and in particular the significance and size of each spouse’s contribution towards the acquisition of the matrimonial property and the accumulation of matrimonial savings, as well as the welfare of the children. The payment of maintenance, earning a living, housekeeping, the care and upbringing of the children of both spouses and any other matrimonial assistance will be regarded as a contribution.

c) the minor children of the spouses

Since the Act of 2001 amending the law relating to children came into force on 1 July 2001, parents have had extensive scope following separation to make their own arrangements for custody. In the event of divorce, the joint custody of a minor child of the marriage shall in principle remain intact, although if they wish to maintain full joint custody as in marriage the parents must within a reasonable period of time submit an agreement to the courts on the child’s primary place of residence. The courts must approve this arrangement if it reflects the interests of the child. If no arrangement of this kind is produced within a reasonable period of the divorce, or if it does not reflect the interests of the child, the courts must decide (in the absence of an amicable agreement if necessary involving arbitration) which parent will be granted sole custody.

The parents, however, may decide in advance that one of them will have sole custody once the marriage has been dissolved.

If both parents share custody, either of them may at any time petition for joint custody to be revoked. The courts will then grant sole custody to one of the parents on the basis of the child’s best interests.

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d) the obligation to pay maintenance to the other spouse

The spouse who is solely or predominantly responsible must provide the other spouse with a level of maintenance appropriate to that spouse’s lifestyle if the latter’s income from assets and earnings from such an occupation which might be expected of him or her in the circumstances is not sufficient. If both spouses are responsible for the divorce, but neither is predominantly responsible, a spouse who cannot maintain himself or herself may be granted a contribution towards his or her maintenance, if that is equitable with regard to the needs, the assets and the employment of the other spouse. The obligation to pay a contribution may be subject to a time restriction. In the case of divorce by mutual agreement, spouses are at liberty to agree whether one of them shall pay the other maintenance, or whether they mutually waive any claims to maintenance.

4. What does the legal term ‘legal separation’ mean in practical terms?

This legal institution is not known to the Austrian legal system.

5. What are the conditions for legal separation?

See Answer to 4.

6. What are the legal consequences of legal separation?

See Answer to 4.

7. What does the term ‘marriage annulment’ mean in practice?

Austrian marriage law provides for ‘nullity of marriage’. A marriage is null and void if it was not contracted in the manner prescribed, if one of the spouses was legally incompetent, unconscious or mentally disturbed when the marriage was contracted, or if the marriage was contracted solely or primarily for the purpose of enabling one of the spouses to take the surname of the other or to acquire his or her nationality without any intention to create the basis for a marital relationship. A marriage is also null and void if one of the spouses was legally married to a third party when the marriage was contracted or it was unlawfully contracted between blood relations.

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A marriage may be annulled by the courts if at the time it was concluded one of the spouses was of reduced legal competence and his legal representative did not consent to the marriage, if when the marriage was contracted one of the spouses did not know that he or she was contracting marriage or if he or she did know but did not wish to make a statement that he or she wished to enter into matrimony, if one of the spouses was mistaken about the identity of the other spouse, if at the time marriage was contracted he or she was mistaken about any circumstances pertaining to the other spouse which would have prevented him or her from entering into matrimony had he or she known of the situation and properly appreciated the implications of marriage, if he or she was induced into entering into matrimony by malicious deception about essential facts, or if he or she was unlawfully forced by means of threats to enter into matrimony.

8. What are the conditions for marriage annulment?

See Answer to 7.

9. What are the legal consequences of marriage annulment?

If a marriage is annulled it will be treated as if it had never been contracted. If only one of the spouses was unaware of the marriage’s nullity when it was contracted, the circumstances of the spouses in relation to their property will be subject to the rules which apply in the event of divorce. Children who are born in wedlock will be regarded as legitimate even after the marriage has been annulled.

When a marriage is annulled the consequences will be determined in accordance with the rules concerning the consequences of divorce.

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10. Are there alternative non-judicial means for solving issues relating to the divorce without going to court?

A divorce or annulment can only be granted by the courts, but problems arising in connection with the divorce may be settled out of court (e.g. by arbitration).

11. Where should I lodge my application for divorce/legal separation/marriage annulment? Which formalities must be respected and which documents should I attach to my application?

Disputes concerning divorce or annulment of marriage, or the existence or non-existence of a marriage fall within the jurisdiction of the District Courts. Disputes concerning divorce or annulment of marriage, or the determination of the existence or non-existence of a marriage fall within the exclusive jurisdiction of the District Court for the area in which the spouses are or were last habitually resident. If at the time proceedings were instituted neither spouse was habitually resident in that area, or if they were not both habitually resident in the country, the court in whose area the respondent is habitually resident, or in the absence of any such habitual residence, that in which the petitioning spouse is habitually resident, shall have exclusive jurisdiction, and otherwise the District Court of the Inner City of Vienna. Such disputes fall within the domestic jurisdiction of the Austrian courts if either spouse is an Austrian citizen, if the respondent, or in the case of a petition for annulment from both spouses at least one of them, is habitually resident in the country or if the petitioner is habitually resident in the country and either both spouses were last habitually jointly resident in the country or the petitioner is a stateless person or was an Austrian citizen at the time marriage was contracted. Although this will be the exclusive place of jurisdiction, it is permissible to agree upon a different place of jurisdiction.

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In the case of a petition for divorce the general formalities for a petition must be respected; in the case of a petition for divorce by mutual consent – on which a decision is reached in the proceedings without a lawsuit – a signed petition from both spouses is required. In any case a marriage certificate should always be attached. It is also advisable to attach any other documents which support the petition.

12. Can I obtain legal aid to cover the costs of the procedure?

It is possible to apply for legal aid in divorce cases in accordance with the general rules on legal aid (see ‘Legal Aid - Austria’). Legal representation is mandatory in divorce proceedings. This means that a party who does not wish to appear before the court in person can only be represented by a lawyer.

13. Is it possible to appeal against a decision relating to divorce/legal separation/marriage annulment?

Decisions by a court of the first instance on divorce or the annulment of a marriage or on the existence or non-existence of marriage are subject to appeal to the superior court, which is to say the court sitting at the provincial capital which acts as the court of the second instance for the District Court having jurisdiction.

An appeal on a point of law against the judgement of the Court of Appeal is only permissible if the decision depends on the resolution of a question of substantive law or procedural law which is of considerable significance to the maintenance of the legal entity, to legal certainty or to the evolution of the law, for example because the Court of Appeal adopts a position which is at variance with Court of Justice jurisprudence, or if the latter is absent or inconsistent.

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14. What should I do to have a decision on divorce/legal separation/marriage annulment issued by a court in another Member State recognised in Austria?

Between the Member States of the European Union, with the exception of Denmark, the recognition of a decision to dissolve a marriage is based on Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses, OJ L 160 30. 06. 2000 p. 19 (hereinafter: Brussels II Regulation) which came into force on 1 March 2001, which states that an explicit decision on recognition is no longer required in the case of decisions dissolving marriages made in other Member States. Rather the individual court or individual administrative authority must decide on recognition as a preliminary to legal proceedings. This applies in particular to the check carried out by the Registry Office to determine whether a divorce which was granted in another Member State permits remarriage.

Any party with a legal interest may require a statement to the effect that a decision issued in another Member State dissolving a marriage can or cannot be recognised. Proceedings on the recognition or non-recognition of decisions issued in another Member State on the existence of a marriage must in principle be conducted at a District Court. An application for the recognition or non-recognition of a decision issued in another Member State dissolving a marriage must be submitted to the District Court within whose jurisdiction the petitioner habitually resides. If he or she does not habitually reside in the country, the court within whose area the party opposing the petition habitually resides shall have jurisdiction, and otherwise the District Court for the Inner City of Vienna.

15. To which court should I turn in Austria to oppose the recognition of a decision on divorce/legal separation/marriage annulment issued by a court in another Member State? Which procedure applies in these cases?

See Answer to 14. The documents to be submitted are listed in Article 32 of Brussels II Regulation.

16. Which is the applicable law in a divorce proceeding between spouses who do not live in Austria or who are of different nationalities?

The conditions and effects of divorces must be assessed on the basis of the shared personal status (right of domicile) of the spouses, or in its absence on the basis of most recent shared personal status, provided one of them has retained it. If they have no shared personal status, or neither of them has retained it, the law of the State in which both spouses habitually reside shall be definitive. If they habitually reside in different States, the law of the State in which they both last habitually resided shall be applicable, provided one of the spouses continues to do so. If they have never habitually resided in the same State, or if neither of them still habitually resides in that State, the divorce must be assessed on the basis of the personal status of the petitioning spouse at the time the divorce decision was issued. This also applies if the marriage cannot legally be dissolved on the basis of the asserted facts.



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Last update: 02-08-2007

 
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