Maintenance claims - Austria

TABLE OF CONTENTS 1. What do the concepts “maintenance” and “maintenance obligation” cover according to the law of Austria?  2. Up to what age can a child benefit from a maintenance allowance?  3. In which cases is the law of Austria applicable?  4. If this law is not applicable, which law will the courts of Austria apply?  5. Should the applicant apply to a specific organisation, a government department (central or local) or a court to obtain maintenance?  5.A. How do I apply for maintenance from this organisation or government department (central or local) , and what procedures apply?  6. Can a request be made on behalf of a relative, a close relation, or a child under age?  7. If the applicant plans to bring the case to court, how does he/she know which court has jurisdiction?  8. Does the applicant have to go through an intermediary to bring the case to court (e.g. a lawyer, specific organisation or government department (central or local) etc.) ? If not, which procedures?  9. Does the applicant have to pay fees to bring a case to court? If so, how much are they likely to be? If the financial means of the plaintiff are insufficient, can he/she obtain legal aid to cover the costs of the procedure?  10. What kind of maintenance is likely to be granted by the court? If an allowance is granted how will it be assessed? Can the court’s decision be revised to take account of changes in the costs of living or family circumstances?  11. How and to whom will the maintenance be paid?  12. If the maintenance debtor doesn’t pay voluntarily, what action can be taken in order to force him/her to pay?  13. Is there an organisation or government department (central or local) which can help me to recover maintenance?  14. Can they replace the debtor and pay the maintenance themselves or part of the maintenance in his or her place? What happens if the petitioner is in Austria and the maintenance debtor has his/her residence in another country?  15. Can the petitioner obtain the assistance of an organisation or government department (central or local) in Austria?  16. If so, how can that organisation or government department (central or local) be contacted?  17. What kind of assistance can the petitioner receive from this organisation or government department (central or local) ?  18. Can the petitioner address a request directly to an organisation or government department (central or local) in Austria?  19. If so, how can that organisation or government department (central or local) be contacted?  20. What kind of assistance can the petitioner receive from this organisation or government department (central or local) ?

 

1. What do the concepts “maintenance” and “maintenance obligation” cover according to the law of Austria?

Which persons have to pay a “maintenance allowance” to another person:

- parents to their children?

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 to their parents?

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.

- a divorced spouse to the other spouse?

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.

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- others?

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.

2. Up to what age can a child benefit from a maintenance allowance?

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.

3. In which cases is the law of Austria applicable?

Maintenance will be assessed under Austrian law if:

1. the person entitled to maintenance has not yet reached the age of 21 and is habitually resident in Austria;
2. a person who has not yet reached the age of 21 and is an Austrian citizen has applied to an Austrian court for maintenance, and the person obliged to pay maintenance is similarly an Austrian and is habitually resident in Austria;
3. the spouse applying for maintenance is an Austrian citizen and the other spouse is or was also an Austrian;
4. the spouse applying for maintenance was always of a different nationality to the other spouse, or neither retains the original common nationality, and both are or have been habitually resident in Austria and one of them is still habitually resident in Austria; or
5. no other law has been invoked under the rules governing the applicable law (see reply to 4) and the closest connection is with Austria.

4. If this law is not applicable, which law will the courts of Austria apply?

1. A claim for maintenance by a spouse or a divorced spouse against the other spouse is subject to the joint personal status (right of domicile) of the spouses, or in its absence the most recent joint personal status, provided one of them has retained it. If they have no joint personal status or neither of them has retained it, the law of the country in which both spouses habitually reside will prevail. If they habitually reside in different countries, the law of the country in which they were both most recently habitually resident will be applied, provided one of them has retained such residency. If they have never been habitually resident in the same country or if neither of them is still habitually resident in this country, the claim for maintenance will be assessed in accordance with the law of the country with which there is the closest connection.
   
2. Claims for maintenance by people under 21 years of age are subject to the law of the country in which they are habitually resident if that country is a party to the Hague Convention of 24 October 1956 on the law applicable to maintenance obligations towards children.
   
3. Parents’ claims for maintenance against a child and vice versa, if the child is more than 21 years of age or is not habitually resident in a country which is party to the Convention specified above, will be subject to the child’s personal status.
   
4. All other claims for maintenance are subject to the law of the country with which there is the strongest relationship.

5. Should the applicant apply to a specific organisation, a government department (central or local) or a court to obtain maintenance?

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.

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5.A. How do I apply for maintenance from this organisation or government department (central or local) , and what procedures apply?

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.

6. Can a request be made on behalf of a relative, a close relation, or a child under age?

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.

7. If the applicant plans to bring the case to court, how does he/she know which court has jurisdiction?

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.

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8. Does the applicant have to go through an intermediary to bring the case to court (e.g. a lawyer, specific organisation or government department (central or local) etc.) ? If not, which procedures?

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.

9. Does the applicant have to pay fees to bring a case to court? If so, how much are they likely to be? If the financial means of the plaintiff are insufficient, can he/she obtain legal aid to cover the costs of the procedure?

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.

10. What kind of maintenance is likely to be granted by the court? If an allowance is granted how will it be assessed? Can the court’s decision be revised to take account of changes in the costs of living or family circumstances?

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.

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11. How and to whom will the maintenance be paid?

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.

12. If the maintenance debtor doesn’t pay voluntarily, what action can be taken in order to force him/her to pay?

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.

13. Is there an organisation or government department (central or local) which can help me to recover maintenance?

Only in the case of minors will the province’s Youth Welfare Officer assist the legal representative with the realisation of maintenance claims.

14. Can they replace the debtor and pay the maintenance themselves or part of the maintenance in his or her place? What happens if the petitioner is in Austria and the maintenance debtor has his/her residence in another country?

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.

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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.

15. Can the petitioner obtain the assistance of an organisation or government department (central or local) in Austria?

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”).

16. If so, how can that organisation or government department (central or local) be contacted?

See reply to 15.

17. What kind of assistance can the petitioner receive from this organisation or government department (central or local) ?

See reply to 15.

18. Can the petitioner address a request directly to an organisation or government department (central or local) in Austria?

See reply to 15.

19. If so, how can that organisation or government department (central or local) be contacted?

See reply to 15.

20. What kind of assistance can the petitioner receive from this organisation or government department (central or local) ?

See reply to 15.

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Last update: 03-05-2005