Parents must contribute on a proportional basis according to their capacity to meet a child’s needs commensurate with their circumstances, taking into account the child’s aptitudes, abilities, inclinations and development potential. The parent in charge of the household where the child lives makes their contribution in that way. The other parent must make maintenance payments.
Children owe their parents maintenance, taking due account of their circumstances, if the parents entitled to maintenance are not in a position to maintain themselves and have not grossly neglected their own maintenance obligations to their child.
The spouse who is the sole or principal party at fault must provide the other spouse with maintenance that is commensurate with the spouse’s circumstances, if their income from assets and the earnings from any work which might be expected of them under the circumstances are insufficient. If both spouses are at fault in their divorce, and neither is mainly at fault, a spouse who is unable to provide for themselves may be granted a contribution towards their maintenance if this is reasonable in the light of the needs and financial circumstances of the other spouse. An obligation to contribute may be imposed for a period which is subject to limitation. In the case of an amicable divorce the spouses are free to agree whether one of them will pay the other maintenance, or whether they will both waive any claims to maintenance.
Spouses must contribute jointly towards meeting those needs which are commensurate with their circumstances and in accordance with their capabilities. Thus an unemployed spouse is also entitled to maintenance from an employed spouse while they are still married. If the spouses live together, maintenance is in principle provided in kind. Once the marriage partnership has been dissolved maintenance must be provided in money.
A child’s entitlement to maintenance ends when they are able to support themselves. This is not dependent on the attainment of a specific age (and in particular the attainment of majority) , but on the child’s ability to earn the means to provide for themselves. The circumstances of the child and the parents determine any assessment of the child's ability to provide for themselves.
Maintenance will be assessed under Austrian law if:
In principle the maintenance debtor and the entitled party may agree on payment obligations out of court. If child maintenance is involved, agreement may also be reached in consultation with the Youth Welfare Officer. If no agreement is reached, the party who is entitled to maintenance must apply to the competent district court.
Minor children may ask the district court to fix child maintenance in non-contested proceedings.
Children who have reached the age of majority and others with an entitlement to maintenance must bring an action for maintenance to be dealt with under civil law in the normal way.
In principle everyone must assert a claim to maintenance in his or her own name. In the case of minors it is the legal representative who must submit the appropriate applications.
Claims for maintenance can be brought in a variety of proceedings (contested proceedings, non-contested proceedings) and before a variety of courts, depending on who is entitled to maintenance and who is the debtor. In principle the following applies: claims for maintenance fall within the jurisdiction of the district court. Claims for maintenance arising from the marital relationship fall within the jurisdiction of the court which is itself also responsible for disputes arising from the marital relationship. An application for maintenance in a parent-child relationship may be brought before the district court within whose jurisdiction the party entitled to maintenance is habitually resident, or if currently resident they are not habitually resident in Austria. If they are not resident in Austria, the court within whose jurisdiction the legal representative is habitually resident will be the competent court, and if the legal representative is not habitually resident in Austria, and a minor is involved, the court within whose jurisdiction one of the parents is habitually resident; if, alternatively, someone who has been recommended for fostering is involved, the court of their most recent habitual residence in Austria will be applicable, and otherwise the district court for Central Vienna.
In matters of maintenance which are dealt with in contested proceedings, either party may represent him- or herself in the first instance or be represented by any other person; if the case involves money or monetary value in excess of €4 000, however, the parties must be represented by a lawyer if they do not represent themselves. If the matter is dealt with in non-contested proceedings, representation is not mandatory, but is nevertheless permitted.
It is usual for court costs to be payable in the case of both contested and non-contested proceedings. The amount payable is regulated by the Court Costs Act, and is essentially subject to the value of the maintenance claim. If the applicant is a minor, court costs will always be payable – irrespective of the decision – by the party which is liable to pay maintenance rather than by the under-age applicant. In individual cases details of the prospective sum may be obtained from the court. If the plaintiff’s funds are insufficient he may, subject to the general conditions of legal aid, also be given time to pay the court costs.
There are no firm legal provisions for the calculation of maintenance to a spouse or to a child. Comparable rates, however, have been established in case law, which the deciding bodies may use for guidance when calculating the amount of maintenance. If circumstances change after a court has established maintenance, it is possible to apply for a revised calculation.
Maintenance is in principle payable in legal tender directly to the person entitled to receive it (or to his or her bank account). Child maintenance must be paid to the parent who cares for the child and brings him or her up.
If an obligation to pay maintenance has been established by a legal judgment or decision or in a public document, the maintenance debtor may be subject to enforcement if he or she fails to comply with his or her payment obligations.
If a maintenance debtor fails to comply with his or her payment obligations to a minor, he may even be liable to prosecution.
Only in the case of minors will the province’s Youth Welfare Officer assist the legal representative with the realisation of maintenance claims.
In certain circumstances the court may grant advance payments of maintenance to minors. In that event maintenance will be paid in advance by the Government, and the maintenance arrears effected by the maintenance debtor.
If the conditions for advance payments of maintenance are satisfied, it makes no difference whether the maintenance debtor resides in Austria or in another country.
A petitioner who is resident in Austria may only apply for assistance from a (central or local) government department in cases which are subject to the UN Convention of 20 June 1956 on the recovery abroad of maintenance. A petition of this nature must be submitted to the forwarding office of the government of the country in which the petitioner resides. The foreign forwarding office will then forward the petition and all necessary documents to the Austrian Receipts Office (Federal Ministry of Justice (Bundesministerium für Justiz) , Department I 10). The Federal Ministry of Justice will then forward the petition to the competent court (to initiate and implement maintenance proceedings or enforce a judgment or other legal title to the payment of maintenance).
The petitioner may, of course, apply directly to the competent court, in which case, however, he or she must comply with all of the formal conditions him/herself. Among the usually effective conditions, it is also possible to apply for legal aid (see “Legal Aid – Austria”).
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Last update: 03-05-2005