Austrian law recognises three types of divorce: divorce on grounds of fault, divorce following separation for at least three years and divorce by 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 couple have been living apart for three years, either spouse may petition for divorce on the grounds that the marriage has broken down irretrievably.
If the matrimonial partnership has not existed for at least six months, both admit that the marriage has irretrievably broken down and they agree to divorce, they may jointly petition for divorce.
The main ground for divorce is irretrievable breakdown of the marriage. The breakdown may have been caused by a serious marital fault on the part of one partner, especially where one spouse has been unfaithful or has been physically violent towards, or inflicted serious emotional suffering on the other. The other spouse may petition for divorce even if the behaviour cannot be regarded as 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 causes revulsion. In all such cases, the spouse petitioning for divorce must prove the grounds asserted. However, if the spouses have been living apart for three years, marital fault need not be asserted or established.
As a rule, both spouses retain the surname they used while they were married. If either spouse adopted the other spouse’s surname on marriage, they may go back to using their previous name.
In principle, the spouses can agree to divide up their property as they wish. This may be done by mutual renunciation (meaning that the legal separation of property during the marriage is maintained after the marriage has been dissolved), by dividing any property acquired by contract and held in common or by transferring property from one spouse to the other.
If the spouses have not reached agreement on their property, either of them may ask the court to divide certain property belonging to both spouses. What are known as ‘matrimonial assets’ and ‘matrimonial savings’ will be divided between them. ‘Matrimonial assets’ are the matrimonial home and household effects and any other things actually used by both spouses in their day-to-day lives while they were married. ‘Matrimonial savings’ are all investments accumulated by the couple while they were living together as man and wife.
Anything which the spouses brought to the marriage or inherited or were gifted by a third party is excluded from the division of property, as is anything which one spouse alone used for personal purposes or for their occupation, including companies and shares in companies, unless they were merely investments.
The court must distribute the assets equitably, with due regard for all relevant circumstances, paying particular attention to the importance and size of each spouse’s contribution towards the acquisition of the matrimonial assets and the accumulation of the matrimonial savings, and to the welfare of the children. Payment of maintenance, help in earning a living, the keeping of the joint household and the care and upbringing of the children of both spouses and any other matrimonial assistance will be regarded as a contribution.
Since the 2001 Act Amending the Act on Children entered into force on 1 July 2001, separated parents have had extensive scope to make their own custody arrangements. In the event of divorce, both spouses usually retain joint parental responsibility of underage children. However, if the parents wish to retain full joint parental responsibility, as they had in marriage, they must file an agreement on the child’s primary place of residence with the court within a reasonable time limit. The parents may also enter into an agreement in court under which one parent has sole parental responsibility or one parent’s parental responsibility is limited to specific matters.
Since the 2013 Act Amending the Act on Children and Names (Kindschaftsrechts-Änderungsgesetz , the court may award the parents joint parental responsibility against the wishes of one or both parents if it considers that joint parental responsibility is in the child’s best interests. The parents must then agree which parent the child will live with. If joint parental responsibility is not in the child’s best interests, the court must decide which parent is to be awarded sole parental responsibility.
The spouse who was solely or predominantly to blame must pay the other spouse sufficient maintenance to maintain their lifestyle, if that spouse has insufficient income from assets or from work which they can reasonably be expected to do in the circumstances. If both spouses are to blame for the divorce, but neither is more to blame than the other, the spouse unable to maintain himself or herself may be awarded a contribution towards their maintenance if that is equitable based on the needs, assets and earnings of the other spouse. Any such compulsory obligation may be subject to a time limit. In the event of divorce by consent, the spouses can freely agree whether one should pay the other maintenance or whether they both waive any maintenance claims.
There is no such arrangement under Austrian law.
See answer to Question 4.
See answer to Question 4.
Austrian marriage law provides for 'nullity of marriage' (‘Ehenichtigkeit’). A marriage is null and void if it was not contracted in the prescribed form, if one of the spouses was legally incapacitated, unconscious or temporarily mentally disturbed when the marriage was contracted or if the marriage was contracted solely or primarily for the purposes of enabling one spouse to take the other spouse’s surname or acquire the other spouse’s nationality, without any intention of creating a matrimonial relationship. A marriage is also null and void if one of the spouses was living in lawful matrimony with a third party when the marriage was contracted or if the marriage was unlawfully contracted between blood relations.
A marriage may be annulled by court judgment if, when the marriage was concluded, the legal capacity of one of the spouses was limited and their statutory representative did not consent to the marriage, one spouse did not know that they were entering into matrimony or did know they were entering into matrimony but did not wish to declare their willingness to enter into matrimony, one spouse was mistaken as to the identity of the other spouse, they were mistaken about any circumstance pertaining to the other spouse that would have prevented them from entering into matrimony had they known of the situation and properly appreciated the implications of marriage, they were induced into entering into matrimony by malicious deception as to essential facts, or they were unlawfully forced (threatened) into marriage.
See answer to Question 7.
If a marriage is annulled, the marriage is treated as if it had never taken place. If only one of the spouses was aware that the marriage was null and void when it was contracted, the situation between the spouses in relation to their property will be resolved in keeping with the provisions that apply in the event of divorce. Any children born of a marriage will be regarded as legitimate even after the marriage has been annulled.
Divorce or annulment can only be granted by the courts, but problems in connection with the divorce may be settled out of court (e.g. through mediation).
Disputes relating to divorce or annulment or the existence or non-existence of a marriage fall within the jurisdiction of the District Courts (Bezirksgerichte). Such disputes fall with the exclusive jurisdiction of the District Court in whose district the spouses are or were last habitually resident together. If, when the petition was filed, neither spouse was habitually resident in that district or if they had no joint habitual residence in Austria, the court in the district where the respondent is habitually resident or, if the respondent has no habitual residence in Austria, the court in the district where the petitioning spouse is habitually resident or, failing that, the District Court of Central Vienna (Bezirksgericht Innere Stadt Wien) shall have sole jurisdiction. Such disputes fall within the domestic jurisdiction of the Austrian courts if either spouse is an Austrian national, if the respondent or, in the case of a petition for annulment by both spouses, at least one of them is habitually resident in Austria or if the petitioner is habitually resident in Austria and either both spouses had their last joint habitual residence in Austria or the petitioner is a stateless person or was an Austrian national when the marriage was contracted. Although this is an exclusive place of jurisdiction, a different forum may be agreed.
Divorce petitions must comply with the general formalities for a petition. Petitions for divorce by consent, on which a ruling is handed down under the non-contentious procedure, must be signed by both spouses. In all cases, a marriage certificate must be enclosed. It is also advisable to attach any other documents that support the petition.
It is possible to apply for legal aid in divorce cases in accordance with the general rules on legal aid (see ‘Legal Aid - Austria’). In divorce proceedings there is a relative legal requirement for a lawyer; if a party does not wish to appear in court in person, they can only be represented by a lawyer.
Appeals may be lodged against rulings by a court of first instance on divorce or annulment or on whether a marriage did or did not exist before the relevant superior court, i.e. the Regional Court (Landesgericht) which acts as the Court of Second Instance for the competent District Court.
Rulings by the Appeal Court may only be appealed against on a point of law if the decision relies on the answer to a question of substantive law or procedural law which is important in terms of maintaining legal consistency or legal certainty or developing the law, for example because the Appeal Court deviates from the case-law of the Supreme Court or there is no such case-law or it is inconsistent.
Since 1 March 2001, recognition of divorce decrees between Member States of the European Union (with the exception of Denmark) has been 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 2000/160, p. 19). Under this regulation, known as the Brussels II Regulation, an explicit decision recognising a divorce decree granted in another Member State is no longer required. Instead, individual courts or administrative authorities must rule on recognition as a preliminary issue to the legal proceedings. This applies in particular to the check to be carried out by the registry office in order to determine whether a divorce granted in another Member State permits remarriage.
Any party with a legitimate interest may apply for a declaration that a divorce decree granted abroad should or should not be recognised. Generally, proceedings for recognition/non-recognition of foreign judgments regarding the existence of a marriage are conducted before the District Courts. Applications for divorce decrees to be recognised or not recognised must be submitted to the District Court in the district where the applicant is habitually resident or, if they have no habitual residence in Austria, the court in the district where the defendant is habitually resident or, failing that, the Bezirksgericht Innere Stadt Wien.
See answer to Question 14. The documents to be submitted are listed in Article 32 of the Brussels II Regulation.
The law governing the conditions for divorce is determined in accordance with Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (OJ L 343/10 of 29.12.2010). known as the Rome III Regulation. The couple may choose the law which they wish to apply. That may be the law of the state in which they are habitually resident when the choice is made or the law of the state in which they were last habitually resident, provided that one of them is still habitually resident there when the choice is made, or the law of the state of which one spouse is a national when the choice is made or of the state in which the petition is filed. If the couple does not choose a forum, the law of the state in which the couple is habitually resident when the petition is filed applies or, if they have no habitual residence, the law of the state in which the couple was last habitually resident, provided that they ceased to be habitually resident there no more than one year before the petition is filed and one spouse is still habitually resident there when the petition is filed or, failing that, the law of the state to which both spouses belong when the petition is filed or the law of the state in which the petition is filed.
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