Austria

Sources of Law

The general provisions of the law relating to family relationships, personal consequences of a marriage, inheritance and financial provision are laid down in the Civil Code.

Special provisions relating to the formation of marriage, nullity and dissolution of marriage and divorce are to be found in the Marriage Act 1938. This Act was frequently amended, bringing about major changes to the law on divorce and introducing mediation into the Marriage Act.

Jurisdiction

Brussels II applies.

Domicile and Habitual Residence

Habitual residence is determined by the facts s66 (2) Jurisdiktionsnorm: the real centre of a person’s life; a place where someone stays for a longer period; it is the centre of someone’s life, economic existence and social relations.

Relevant factors are the duration, the continuity and other personal and professional components

Domicile= a place where someone deliberately or obviously settles in order to stay in permanence.

Conflict of Law/Applicable Law to be Applied

Common nationality or last common nationality if one spouse still retains it.

Common habitual residence

Last common habitual residence if one spouse still resides there.

Pre-Nuptial Agreements

Divorce

Ground 1 Mutual consent

Ground 2, Fault

Ground 3. A separation of three years (in exceptional cases six years)

Finances/Capital/Property

Assets are to be divided according to equity, taking into account the contributions of each spouse to the acquisition of the assets, children’s welfare and the debts connected to the expenses of conjugal life.

Assets brought into the marriage, inherited assets, donated assets and companies are not divided.

Contributions also include maintenance, housekeeping, upbringing of the children and assistance in general.

Finances/Maintenance

A divorce by mutual consent can only be granted after the spouses have concluded a maintenance agreement.

Divorce by fault- the party found solely or preponderantly guilty by the court has to support the innocent party financially. Rule applies if the latter does not have a sufficient income to meet the expenses of a lifestyle adequate to the situation of the spouses from his/her property or from employment according to percentages, depending on incomes and children.

The 1999 Family Law reform- maintenance can be granted irrespective of fault in divorce in situations where (a) employment cannot be expected due to child care duties (usually up to the age of 5) or (b) where one spouse, as mutually agreed, undertook housekeeping, childcare or care for relatives during the marriage and therefore has a low earning potential after the divorce.

Child Maintenance

Both parents are equally obliged to provide maintenance for their children proportionally according to their means. The amount of maintenance is determined both by the family’s living conditions and the children’s talents, abilities and inclinations.

Maintenance is calculated by reference to the regular maintenance requirement determined by the courts and reflecting the needs of a minor of a certain age.

However there is the so called “playboy limit” as a the courts consider that too much money is bad for children.

Cohabitants

There is no legislation applicable to the rights and duties of cohabitants, but there are some privileges in various laws.

Civil Partnership/Gay Marriage

With thanks to Alfred Kriegler of Rechtsanwaltskanzlei Dr. Alfred Kriegler, Hoher Markt 1, A-1010 Vienna. Austria. www.divorce.at