Family law in Austria: overview

A Q&A guide to family law in Austria.

The Q&A gives a high level overview of key issues including jurisdiction and conflict of law; pre- and post-nuptial agreements; divorce, nullity, and judicial separation; children; surrogacy and adoption; cohabitation; family dispute resolution; civil partnership/same-sex marriage; and controversial areas and reform.

To compare answers across multiple jurisdictions visit the Family Country Q&A tool.

This Q&A is part of the global guide to Family law. This contribution, in its original form, first appeared in Family Law (2nd edition), General Editor James Stewart of Pennington Manches LLP.

Family Law was published in association with the International Academy of Matrimonial Lawyers.

For a full list of jurisdictional Q&As visit www.practicallaw.com/family-guide.

Dr Alfred Kriegler, Rechtsanwaltskanzlei Dr. Alfred Kriegler
Contents

Jurisdiction and conflict of law

Regulatory framework

1. What are the primary sources of law in relation to marriage, marital breakdown and the welfare of children and give a brief overview of which courts will have jurisdiction to hear the dispute?

Sources of law

The Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch (ABGB)) governs legal relationships between spouses, relationships between parents and children, and also issues of succession and property rights.

The Austrian Marriage Act (Ehegesetz (EheG)) contains provisions concerning engagements, the requirements for entry into a marriage and for the dissolution of a marriage by divorce, annulment or nullity, as well as maintenance obligations after divorce, the distribution of assets and articles for daily use in conjugal community and matrimonial savings.

The Resolution Act relating to non-litigious proceedings (Außerstreitgesetz (AußStrG)) applies to special procedural matters in parent and child law, divorces by mutual consent and the distribution of matrimonial property.

Provisions on litigious proceedings in general and the jurisdiction of Austrian courts can be found in the Code of Civil Procedures (Zivilprozessordnung (ZPO)) and the Act governing the jurisdiction of Austrian courts (Jurisdiktionsnorm (JN)).

Unlike many other European states, individual rulings are not used as general precedents for other similar cases in Austria. However, such decisions are important when it comes to the interpretation of laws. One exception to this rule is the calculation model which was developed through the established practice of the courts and is applied throughout the country in decisions relating to maintenance.

Court system

There are no separate family courts in Austria. District Courts (Bezirksgerichte) have first-instance jurisdiction in family matters and specialist family law departments are in place.

Jurisdiction

2. What are the main requirements for local courts to have jurisdiction in relation to divorce, property and children proceedings?

Divorce

The Act governing the jurisdiction of Austrian courts (JN) sets out the international jurisdiction of the Austrian courts. Austrian courts have jurisdiction in cases of divorce, annulment or nullity of marriage and declaratory judgments relating to the validity of a marriage if one of the following conditions is met:

  • One of the parties is an Austrian national.

  • The respondent (or at least one respondent, where a petition for nullity is brought by both spouses or both registered partners) has his or her habitual residence in Austria.

  • The petitioner:

    • has his or her habitual residence in Austria and the last common address and the habitual residence of either spouse or registered partner was located in Austria;

    • is stateless or was an Austrian national at the time the marriage or registered partnership was entered into.

Property

Domestic courts have jurisdiction over proceedings concerning the distribution of assets and articles for daily use in marital relations and matrimonial savings if one of the parties is an Austrian national or has his or her habitual residence in Austria.

Children

In parent and child law cases, the jurisdiction of the Austrian courts is contingent on whether the minor:

  • Is an Austrian national.

  • Has a habitual residence (or, in urgent matters, a temporary place of abode) in Austria.

  • Holds assets in Austria, if the dispute concerns such assets.

At the same time, the jurisdiction of the Austrian courts is governed by the relevant EU regulations when cases involving EU member states are considered. Under the regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (Regulation (EC) 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels IIA Regulation)), the jurisdiction of the courts of a member state in matters of divorce, legal separation or annulment of a marriage, depends on whether the member state is:

  • Where both spouses have their habitual residence.

  • Where both spouses had their last habitual residence, provided that one of them still resides there.

  • Where the respondent has his or her habitual residence.

  • In case of a joint petition, where one of the spouses has his or her habitual residence.

  • Where the petitioner has his or her habitual residence, provided that he or she has lived there for at least one year immediately prior to filing the petition.

  • Where the petitioner has his or her habitual residence, provided that he or she stayed there for at least six months immediately prior to filing the petition and provided that he or she is either a national of that member state or has his or her domicile there (in case of the United Kingdom and Ireland).

  • Where both spouses are nationals of that member state or, in case of the United Kingdom and Ireland, their common domicile is located there.

Under the above regulation, the courts having jurisdiction in matters of parental responsibility are the courts of the member state where the child had his or her habitual residence at the time when the petition was filed.

Domicile and habitual residence

3. How do the concepts of domicile and habitual residence apply in relation to divorce, financial arrangements, and children?

Persons are considered to have their domicile in Austria if they have taken up their abode with the intention of residing in Austria permanently. When determining habitual residence, the duration of stay, as well as the personal circumstances and job situation indicating a long-term connection between the person and their stay, will be taken into consideration. According to precedent, a period of about six months has been determined to be indicative of such a long-term connection.

Conflict of law

4. What procedure applies for a party applying to stay proceedings in favour of a foreign jurisdiction? What factors do local courts take into account when determining forum issues?

Procedure

Provisions governing the law applicable in cases which have effect beyond the Austrian borders are set out in the Act on Private International Law (Internationales Privatrecht-Gesetz (IPRG)).

The legal effect of a marriage and the legal effects of divorce are determined as follows:

  • The common domicile, or where there is no common domicile, the last common domicile of the spouses, provided that one spouse retained it.

  • According to the law of the state where both spouses have their common habitual residence, or in the absence of such a state, according to the law of the state where both spouses had their last common habitual residence, provided that one spouse retained such residence.

Factors

If the marriage did not come into effect under the applicable law but is valid in Austria, the legal effects of the marriage are adjudicated under Austrian law. If the spouses are more strongly connected to a third country, and the marriage is also effective there, the law of the third country will be applied instead of Austrian law (see above, Procedure). If none of these situations applies, the divorce will be adjudicated according to the domicile of the petitioning spouse at the time of the divorce.

The matrimonial property regime will be adjudicated under the law which was expressly chosen by the parties, and in the absence of such choice of law, it will be subject to the relevant law at the time of the marriage.

 

Pre- and post-nuptial agreements

Validity of pre- and post-nuptial agreements

5. To what extent are pre- and post-nuptial agreements binding?

The situation in Austria differs from that in other countries as future spouses rarely enter into pre-nuptial agreements. Related legislation was reformed with effect from 1 January 2010 to facilitate entry into pre-nuptial agreements.

Pre- and post-nuptial agreements can be used for arrangements relating to:

  • The legal consequences of marriage, maintenance and contributions to earnings of the spouse's death.

  • The distribution of marital property and other arrangements in the event of separation or divorce.

Pre- and post-nuptial agreements may only be entered into by spouses or fiancées and are contingent on entering into marriage.

Applicable law

Under the Austrian Act on Private International Law, formal requirements for pre- and post-nuptial agreements are subject to the laws of the country where the agreement was entered into. If a valid pre- or post-nuptial agreement was entered into abroad, it is recognised in Austria. For the law applicable in relation to the distribution of matrimonial property, see Question 4.

Maintenance

In relation to the scope of maintenance to be agreed between spouses, see Question 11. It is permissible to exclude a spouse's right to maintenance in relation to the other spouse in the event of dissolution of a marriage. However, it is not possible to predict what future rulings the Austrian courts will decide in cases of spousal maintenance. For this reason, it is advisable to agree to the waiver of any maintenance providing more than modest subsistence in case a total exclusion of maintenance is found to be invalid.

Child custody

Decisions on child custody in separation or divorce proceedings are taken by the Austrian custody courts. These will consider the best interests of any children of the marriage at the time of divorce. Any pre-existing agreements relating to children will be accepted only as an expression of the spouses' wishes, but the court will respect such wishes if they are also in the best interests of the children. The same principles apply to arrangements concerning visitation rights for the non-care-giving parent.

Waiver of statutory rights

To protect the assets of one spouse, it is also customary in pre- or post-nuptial agreements to include a waiver of all the statutory rights of the surviving spouse to (part of) the estate of the other spouse. Dispositions on death for the benefit of a surviving spouse are possible irrespective of such a waiver.

Distribution of matrimonial property

Where a marriage is dissolved, Austrian law differentiates between matrimonial savings, the matrimonial home and the other matrimonial assets and articles for daily use in the distribution of matrimonial property.

Before the Austrian Family Law Amendment Act 2009 (Familienrechtsänderungsgesetz) came into effect, pre- or post-nuptial agreements concerning matrimonial savings needed to be in the form of a notarial deed to be valid. Any arrangements relating to matrimonial assets, articles for daily use and the matrimonial home were unenforceable. The courts were, however, allowed to take such arrangements into consideration, insofar as it was equitable, in distribution proceedings.

Since 1 January 2010, it has been possible to include a matrimonial home, which would not normally be subject to distribution, in the distributable assets to benefit the financially disadvantaged spouse (opting in).

Conversely, it is also possible to exclude the transfer of ownership or rights in rem from one spouse to the other in respect of any matrimonial homes which one spouse owned, inherited or received as a gift prior to the marriage (opting out). Nevertheless, the judge may order mandatory rights of use in the distribution proceedings.

Apart from agreeing on opting in or opting out, spouses may also enter into other arrangements concerning the matrimonial home, such as arrangements concerning the use or financial compensation to be paid to the spouse who would not retain the home. Pre- or post-nuptial agreements concerning the matrimonial home must be executed in the form of a notarised deed.

The court may decide to overrule an agreement on the use of the matrimonial home by one spouse if the other spouse, or a child of the marriage, is unable to afford basic necessities or would have to accept living in clearly worse circumstances, for example, if relocation resulted in job loss or school change.

Written agreements concerning the remaining matrimonial assets and articles for daily use may be entered into without requiring the formalities of a notarised deed. Such agreements are subject to the same legal provisions which relate to matrimonial savings.

Agreements on matrimonial savings must be executed in the form of notarised deeds. Courts may overrule these agreements if they would lead to an unfair and unreasonable disadvantage for one spouse at the outset, for example, if one spouse was effectively left destitute. In distribution proceedings, the judge may also decide to deviate from a previously equitable and reasonable agreement if adherence to such an agreement has become unreasonable for one spouse, such as where it puts them at an unfair disadvantage under the circumstances prevailing at the time of the distribution. These decisions are taken on a case-by-case basis, for example, if one spouse loses his or her entire property during the marriage. Issues of fault will also be considered in this context.

Considerations when overruling an agreement

If the court overrules a pre- or post-nuptial agreement, the matrimonial circumstances, the duration of the marriage, the question as to whether the agreement was made with the benefit of legal advice and the actual form of the agreement will be considered in making the decision.

Formal requirements for agreements concerning proceedings

Pre- or post-nuptial agreements concerning proceedings for divorce, annulment or nullity of marriage do not have to meet any formal requirements.

Rescinding agreements

If no proceedings for the distribution of assets are commenced within the foreseen period (one year from the date on which the dissolution of the marriage became final and could not be appealed), pre- or post-nuptial agreements may be rescinded for nullity on grounds of a violation of law or bad faith within 30 years from the date of the agreement.

 

Divorce, nullity and judicial separation

Recognition of foreign marriages/divorces

6. Are foreign marriages/divorces/civil partnerships recognised?

Marriages

The provisions governing the recognition of marriages entered into abroad are set out in the Austrian Act on Private International Law (Internationales Privatrecht-Gesetz (IPRG)).

A marriage entered into abroad is valid in Austria if either the requirements of each spouse’s personal statute were met, or the formal requirements applicable in the place where the marriage was solemnised were fulfilled.

Divorces/annulment

The provisions governing the recognition of divorces pronounced abroad are also set out in the Austrian Act on Private International Law (Internationales Privatrecht-Gesetz (IPRG)).

The following will be recognised in Austria, provided they are final and cannot be appealed and there is no other reason to refuse recognition:

  • A foreign decree for judicial separation without divorce.

  • A divorce decree.

  • The annulment of a marriage.

  • A declaratory judgment as to whether a marriage does or does not validly exist.

Recognition may be adjudicated separately as a preliminary question without requiring special proceedings.

Recognition must be refused if:

  • The decision or decree clearly contradicts the fundamental values of the Austrian legal system (ordre public).

  • One of the spouses was not granted due process of law unless he or she evidently agreed to the decision or decree.

  • The decision is incompatible with an Austrian precedent, or an earlier decision (in relation to the particular case) was made which satisfied the requirements of recognition in Austria whereby the spouses were separated or divorced or the marriage was annulled or its valid existence or non-existence was declared.

  • The issuing authority would not have had international jurisdiction if Austrian law were applied.

Recognition does not fall within the remit of the Austrian Federal Ministry of Justice, as was the case in former times. Each authority must clarify the preliminary question whether there exists an impediment to the marriage of the (future) spouses or not.

As Austria is an EU member, Austria must apply the relevant EU regulations concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility in cases involving other member states (Brussels II Regulation). Judgments pronounced in one member state will be recognised in the other member states without requiring special proceedings. Reasons for refusing recognition are similar to those stated in Austrian national law.

Recognition must be refused in the following cases:

  • If recognition clearly contradicts ordre public in the member state where it is applied for.

  • If the respondent who did not enter an appearance was not served with the writ instituting the proceedings or an equivalent writ in a timely manner and in such a way so as to enable him or her to defend herself or himself, unless it is found that he or she clearly agreed to the judgment.

  • If the judgment is incompatible with a judgment pronounced in proceedings involving the same parties in the member state in which recognition is applied for.

  • If the judgment is incompatible with an earlier judgment pronounced in proceedings involving the same parties in another member state or a third country, provided that the earlier judgment fulfils the requirements for recognition in the member state where recognition was applied for.

Civil partnerships

The Eingetragene Partnerschaft-Gesetz (EPG) governs legal relationships between same sex partners like marriage, but the legislators have deliberately changed the wording to distinguish it from "spouses" and "marriage".

Divorce

7. What are the grounds for divorce?

Divorce

Austrian law draws a distinction between divorce arising from fault, divorce for other reasons and divorce by mutual consent.

In a fault divorce, one spouse must have committed serious wrongdoing such as adultery, physical violence or mental cruelty or dishonest or immoral conduct causing the marriage to break down irretrievably. The spouse committing such wrongdoing cannot petition for divorce as this would be morally unjustified. A petition for divorce is not admissible on these grounds if the wrongdoing was forgiven or not perceived as destructive to the marriage. Divorce must be petitioned for within six months from the time when the reason for divorce came to the notice of the other spouse, and is no longer admissible if ten years have passed since the reason for divorce became known.

Divorce may also be petitioned for if the marriage has irretrievably broken down due to one spouse's behaviour resulting from a mental disorder, or if one spouse suffers from a mental illness or an infectious disease or medical condition which cannot be expected to be cured within the foreseeable future. A petition for divorce will not be morally justified in case of undue hardship for the spouse concerned. After six years of judicial separation, a divorce decree must be granted if requested.

Divorce may be applied for if marital relations have been terminated for three years and the marriage has irretrievably broken down. Hardship grounds may again be applied where that divorce would cause more hardship to the respondent than a dismissal of the divorce petition to the petitioner. Again, the divorce must be granted if conjugal relations are not resumed within six years. In this type of divorce, the respondent may apply for a finding in the divorce decree that the petitioner was at fault in the breakdown of the marriage. This is important for older spouses because after the ex-spouse's death, an ex-spouse who is not at fault will be entitled to a full widower's pension regardless of the amount of maintenance previously paid.

Divorce by mutual consent requires conjugal relations to have ended for at least six months. Further requirements are that:

  • The marriage has irretrievably broken down.

  • A joint petition for divorce is to be submitted.

  • The spouses must draw up a written agreement on matters of custody and visitation rights for children from the marriage, child support and maintenance of the ex-spouse, as well as for the distribution of matrimonial property.

Nullity

A marriage can be declared a nullity if:

  • The marriage was not entered into in the required form.

  • One spouse did not have legal capacity or the ability to make informed decisions at the time of the marriage.

  • The marriage was exclusively entered into to assume the other spouse's name or citizenship.

  • If one spouse is already married or if the spouses are relatives by blood.

The consequences are the same as after a divorce.

Judicial separation

Judicial separations are not possible in Austrian law.

Finances/capital and property

8. What powers do the courts have to allocate financial resources and property on the breakdown of marriage?

After a divorce, annulment or declaration of nullity of the marriage, the distribution of matrimonial savings and matrimonial assets and articles for daily use may be made by the spouses by consent or can be ordered by the court at the request of one spouse.

The request for distribution must be submitted within one year from the date on which the dissolution of the marriage became final and cannot be appealed.

 
9. What factors are relevant to the exercise of the court's powers?

The fundamental idea behind the distribution of matrimonial property is the equitable division of the assets acquired during the marriage between the spouses. Fault is not a decisive criterion for the distribution of assets. However, the spouse who is not at fault is to be given a right of first refusal when choosing objects to be distributed.

 
10. What is the court's current position on the division of assets?

Matrimonial savings, assets and articles for daily use must be divided up. These are defined as movable and immovable property used by both spouses during the marriage, for example the household effects or the matrimonial home. Matrimonial savings include investments usually held for utilisation and acquired during the marriage, in particular cash, savings deposits, securities or art objects.

Related debts, if any, must be set off against assets. Only assets acquired during the marriage will be distributed.

Two dates relevant to deciding whether an asset will be subject to distribution are:

  • The date of the marriage.

  • The date when marital relations were terminated.

The cut-off date for valuation of the distributable objects is the date of the first-instance judgment.

The following are not subject to distribution:

  • Assets which one spouse brought to the marriage, inherited or received as a gift.

  • Assets for the sole use of one spouse.

  • Assets for the sole exercise of an occupation.

One special feature of Austrian law is that assets belonging to a company or shares in a company are not subject to distribution unless they are held for investment purposes. If one spouse brought the matrimonial home to the marriage, inherited it or received it as a gift, it will be subject to distribution if the other spouse depends on it because he or she has no other adequate housing and need the home to satisfy his or her current housing needs, or if a child from the marriage depends on the continued use of the home. The same applies to household effects such as furniture and household articles for daily use, if the other spouse depends on being able to use them. According to recent decisions, gifts from relatives which have not been expressly earmarked will be allocated to the spouse related to the giver. Gifts one spouse made to the other will be included in the distributable assets. If assets brought to the marriage, inherited or received as gifts are sold and other assets are bought from the proceeds, or if the proceeds are subsequently deposited in a savings account, their equivalent will remain excluded from distribution, if it is clearly defined.

Distribution must be equitable and the contributions of each spouse to the acquisition of matrimonial assets, the best interests of the children and existing debts must be taken into account. Household work, as well as care-giving and the upbringing of children, will be equivalent to the financial contributions of the breadwinning spouse. The ratio applied in most decisions is 1:1.

If, during the two years prior to the termination of marital relations or to the divorce petition, annulment or declaration of nullity of the marriage, one spouse has reduced the matrimonial assets without the other spouse's consent in a manner inconsistent with conjugal life during the marriage, the value of the missing assets will be included in the distribution. The same applies if matrimonial assets were invested in a company.

This provision helps avoid disadvantages for one spouse by the other's tampering with matrimonial assets.

In the course of the distribution of matrimonial assets, the court may also order the transfer of ownership and other rights in property from one spouse to the other. If the property in question is owned by a third party, transfer is contingent on the latter's consent. Matrimonial savings may also be transferred. The consent of any third party who may be involved is not required if the property in question is the matrimonial home. If there is no other way for a distribution to be made, the court may order one spouse to pay compensation to the other.

Finances/maintenance

11. How does ongoing spousal maintenance operate following marital breakdown?

In the event of a fault divorce, the spouse who the court found to be solely or primarily at fault in the breakdown of the marriage must pay maintenance to the other spouse if the latter:

  • Does not have sufficient income of his or her own.

  • Cannot be expected to earn a sufficient income

  • Does not have sufficient assets to live on.

The spouse entitled to maintenance must take up work if this is reasonable, with due regard being given to their age, state of health, training and previous work experience. Continuation of work to the same extent as during the marriage is considered reasonable. If maintenance payments jeopardise the subsistence of the person obliged to pay, the amount of maintenance will be reduced to an equitable level. However, the existing assets of a person obliged to pay maintenance (not only income yielded from such assets) will be taken into account.

Spouses with no income of their own are entitled to 33% of the net income of the other spouse. Spouses who earn their own money are entitled to 40% of the common income, less their own income.

Additional obligations to maintain children or another ex-spouse will reduce maintenance by 3% to 4%.

Maintenance obligations end when the ex-spouse entitled to maintenance re-marries and, according to the established practice of the courts, they are suspended during such time as the ex-spouse lives in non-marital cohabitation. Ex-spouses entitled to maintenance lose their entitlement in case of serious wrongdoing against the person obliged to pay maintenance after the divorce or if they lead an immoral or dishonest life against the maintenance payer's wishes.

 
12. Is it common for maintenance to be awarded on marital breakdown?

The question as to whether a spouse is entitled to maintenance after divorce, and the amount, will depend on the type of divorce and any finding of fault.

Divorce by mutual consent requires the spouses to agree on spousal maintenance beforehand. A waiver of maintenance is also a possible option in this context.

In case of a divorce where both spouses are equally at fault, spouses are not entitled to mutual maintenance. If a spouse is unable to maintain themselves, they are entitled to equitable maintenance of about 10% to 15% of the other's net income.

Regardless of fault, entitlement to maintenance exists for the spouse who cannot maintain him or herself and is unable to take up gainful work because they:

  • Had care-giving obligations for children.

  • Took care of the household and of the upbringing of children.

  • Had care-giving obligations for a relative.

In the event of a divorce for other reasons, the maintenance provisions for fault divorces apply if there is a finding of fault in the judgment. The same amount of maintenance as that given during the marriage is due after a divorce decree granted after marital relations have been terminated for at least three years and when the court decides one spouse to be solely or primarily at fault. As a matter of principle, maintenance obligations towards a new spouse will not be taken into account. If the judgment does not state any fault, the spouse petitioning for divorce must pay equitable maintenance to the other. In this instance, the needs, financial situation, income and maintenance entitlements from relatives of the other spouse will be taken into account.

 
13. What is the court's current position on maintenance on marital breakdown?

The court will decide according to the law and court decisions concerning maintenance (see Question 11).

Child maintenance

14. On what basis is child maintenance calculated?

Both parents must contribute to meeting the needs of any children. Taking care of the household and giving care to children is considered to be the contribution made by the care-giving parent. If parents and children live in the same household, maintenance is provided in kind as a matter of principle. After a separation, maintenance must be paid in cash.

The amount of maintenance will depend on the personal circumstances of the parents as well as the abilities, talents and development opportunities of the children. Over a period of time the courts have developed precedents setting out the percentages of the average net income of the parent which should be paid as maintenance for the children, although consideration is also given to the other maintenance obligations of such parent. The average maintenance needs of various age groups are published every year. As a matter of principle, monthly maintenance should not amount to more than two-and-a-half times the average need.

Internationally, this maintenance limit is not very high if the parent obliged to pay maintenance has a large income. Apart from entitlement to normal maintenance, children may also have special requirements. These are additional financial needs exceeding the general average of what children of the same age need in Austria. Such special requirements must be extraordinary and urgent in nature. They include expenses for orthodontic treatment, costs of medical treatment or special education to foster the talents of the children. The higher the normal maintenance payments, the lower the additional payments for special requirements will be.

The obligation to pay maintenance ends once the child is able to maintain themselves. If parents are unable to fulfil their maintenance obligations, the grandparents must take care of maintenance.

Reciprocal enforcement of financial orders

15. What is the legal position on the reciprocal enforcement of financial orders?

Acts and deeds issued abroad can be enforced in Austria under the following conditions:

  • Maintenance orders and settlements from other EU member states are enforceable as in their state of origin under EU Regulation (EC) 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and co-operation in matters relating to maintenance obligations (Maintenance Regulation). Exequatur proceedings are no longer required (unless the order was issued in cases that were opened before the Maintenance Regulation entered into force).

  • Orders and settlements issued in states that are parties to the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance 2007 are enforced in accordance with this international treaty.

  • Orders and settlements issued in other states are enforced in accordance with the UN Convention on the Recovery Abroad of Maintenance 1956. The Convention requires another legal basis for recognition and enforcement, mostly a bilateral treaty. Declarations of reciprocity with the US, most provinces of Canada and Australia help to recover maintenance abroad.

Financial relief after foreign divorce proceedings

16. What powers are available to the court to make orders following a foreign divorce?

A typical feature of Austrian law is that the sale or encumbrance of real property can be prohibited by an entry to that effect in the Land Register. Acts and deeds executed abroad must be declared enforceable in Austria if they are enforceable under the law of the state where they were executed and reciprocity is ensured by state treaty or regulation.

 

Children

Custody/parental responsibility

17. What is the legal position in relation to custody/parental responsibility following the breakdown of a relationship or marriage?

In case of a divorce or in case of a separation of the parents, both parents keep joint custody. However, the parents can agree sole custody for the one caring parent or to restrict the rights of the other parent. The parents with shared custody must agree at court in which home the children will be mainly looked after.

If such agreement is not possible after a period of at least six months ("stage of parental temporary responsibility"), the court must decide either sole custody for one parent or joint custody and in which home the children will be mainly looked after.

 
18. What is the legal position in relation to access/contact/visitation following the breakdown of a relationship or marriage?

The child and both parents are entitled to have regular contact according to the needs of the child. This contact should be agreed by consensus. If this is not possible, a parent can ask the court to determine the parents' contact with the child and their duties in relation to the child's welfare. The decision must consider and guarantee the close relationship between parents and children and must embrace times of leisure and times of caring. The decision will depend on the age, the needs and the wishes of the child as well as on the closeness of the relationship in the past. The contact can be reduced or forbidden if it is especially necessary because of violence against the child or an important attachment figure.

The parent not living with the child must not be forced into the position of an occasional visitor. This parent must be involved in the everyday life of the child.

International abduction

19. What is the legal position on international abduction?

Austria is a signatory party to the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. Likewise, EU Council Regulation number 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, and its provisions governing child abduction, are applicable in Austria.

Leave to remove/applications to take a child out of the jurisdiction

20. What is the legal position on leave to remove/applications to take a child out of the jurisdiction? Under what circumstances can a parent apply to remove their child from the jurisdiction against the wishes of the other parent?

Every parent is allowed to leave the territory of Austria with a minor if they (also) have sole custody. The other parent may prevent this from happening if the well-being of the child is jeopardised, for example, if the planned trip is to a war zone.

 

Surrogacy and adoption

Surrogacy agreements

21. What is the legal position on surrogacy agreements?

Surrogacy is forbidden in Austria. However the Austrian Constitutional Court found that decisions of other countries concerning cases outside Austria must be respected.

Adoption

22. What is the legal position in relation to adoption? Is adoption available to individuals and cohabiting couples (both heterosexual and same-sex)?

Austria has kept the tradition that the adopter and the adoptee must enter into a contract that requires approval by a court. Adults can also be adopted as there is no upper age limit. The adoption of a child by more than one person is only permissible if those persons are married. There are no special rules with regard to same sex couples: they cannot adopt jointly.

 

Cohabitation

23. What legislation (if any) governs division of property for unmarried couples on the breakdown of the relationship?

Although more and more couples deliberately decide against marriage, the rights and obligations of cohabiting partners are not enshrined in legislation in Austria, with the exception of a few provisions in secondary laws where non-marital cohabitation is equivalent to marriage. Legal provisions governing the dissolution of marriage are not applicable to non-marital cohabitation. Each partner remains the owner of their assets when cohabiting. In case of separation, the general provisions on assets, gains and damages apply. Cohabiting partners are not obliged to pay maintenance to each other.

There is no legal choice between marriage and cohabitation for heterosexual couples in Austria. The registered partnership introduced in Austria on 1 January 2010 only applies to same-sex couples.

 

Family dispute resolution

Mediation, collaborative law and arbitration

24. What non-court-based processes exist to resolve disputes? What is the current status of agreements reached through mediation, collaborative law and arbitration?

In practice only mediation is accepted by parties to divorces in Austria, as collaborative law is not known and practised. Mediation is regulated in a law (Zivilrechtsmediationsgesetz), collaborative law is not regulated and arbitration in family matters is not provided for.

Agreements for a divorce by consent prepared in mediation must be signed at Court.

Mediation stops prescription as long as mediation is underway.

 
25. What is the statutory basis (if any), for mediation, collaborative law and arbitration?

Mediation is regulated in a law (Zivilrechtsmediationsgesetz) (see Question 24).

 

Civil partnership/same-sex marriage

26. What is the status of civil partnership/same-sex marriage? What legislation governs civil partnership/same-sex marriage?

Until recently, there was no legal basis for same-sex partnerships in Austria. This situation changed with the coming into effect of the Act on Registered Partnerships (Eingetragene Partnerschaft-Gesetz 2009 (EPG)). Since 1 January 2010, there is a legal basis for the cohabitation of homosexual couples which does, however, strongly differ from the legal basis of marriage in some respects.

The main differences between marriage and a registered partnership are:

  • The nature of the participants, since registered partnerships can only be entered into by same-sex couples.

  • The way in which each is entered into:

    • registered partnerships are entered into without the presence of witnesses and without ceremony by simultaneous and personal declaration of intent made by the partners before a representative of the local administrative authority or municipality. There is no engagement and the partnership can only be entered into by persons who are of age (past the age of 18 years);

    • marriages may be entered into by declaration before a court from the age of 16, provided that the legal representatives of the parties and the persons having custody of the minor give their consent.

The effects of a registered partnership also differ significantly from those of a marriage:

  • Registered partners keep their surnames; a common surname requires an additional procedural stage, that is an application for a name change.

  • The Act on Registered Partnership does not oblige the partners to mutual faithfulness.

  • Adoption by registered partners is expressly ruled out and the same holds true for medically assisted reproduction.

  • The dissolution of a registered partnership is easier than obtaining a divorce:

    • dishonest or immoral conduct is not defined as serious wrongdoing entitling a partner to demand the dissolution of the partnership on grounds of fault. If a registered partnership has broken down and cohabitation has ceased for three years, either partner may apply for dissolution, and the application must be granted;

    • in divorce law, there is a hardship clause, stating that a divorce petition must be rejected if the divorce would cause more hardship to the respondent than a dismissal of the divorce petition to the petitioner; in such cases, the marriage will continue for another three years.

The Austrian Constitutional Court ruled that there is no violation of the equal treatment principle in excluding same-sex couples from marriage. However, recent rulings of the European Court for Human Rights have stated that allowing privileges for the institution of marriage does not automatically mean that it is also acceptable to treat same-sex couples differently, at random, without objective justification. For this reason, it remains to be seen what reasons can be given for the differences between marriages and same-sex partnerships under the Act on Registered Partnerships and to what extent a need will arise to reform Austrian marriage law.

 

Controversial areas and reform

27. What areas of the law (if any) are currently undergoing major change? Which areas of law are considered to be particularly controversial?

Discussions about the abolition of fault in divorces have been ongoing for several years but have not led to any changes, since there has been no satisfactory solution to the issue of how to calculate maintenance after marriage.

Joint custody will become the standard, the "stage of parental temporary responsibility" will be abolished, and the rights of the non-caring parent will be strengthened.

The possibilities for pre- and post-nuptial agreements will be broadened. However, there is a need to wait and see how the practice of the courts develops after the most recent reform.

The current law on registered partnerships is a half-hearted solution. However, now that legislators have established the ability to enter into a registered partnership, sooner or later they will have to make such partnerships fully equivalent to marriage.

Surrogacy and assisted reproductive technology in general might be legalised in the future.

 

Contributor profiles

Dr. Alfred Kriegler, Owner, Attorney at Law

Hoher Markt 1, 1010 Vienna

T +43 (0)1 533 42 65
F +43 (0)1 533 42 65 - 4
E kriegler@divorce.at

Professional qualifications. Doctorate in jurisprudence from University of Vienna (Austria); Master of Business Administration from INSEAD at Fontainebleau (France); admitted to the Bar in Vienna and specialised for 30 years in family law (national and international).

Areas of practice. Family law (all areas), inheritance law, mediation, collaborative law, arbitration

Non-professional qualifications. Obtained a diploma with summa cum laude from the Papal University Gregoriana in Rome/Italy "schola literarum latinarum".

Languages. German, English, French, Italian, Spanish.

Professional associations/memberships. Former president of the European Chapter of the International Academy of Matrimonial Lawyers (IAML) (2012 to 2014); member of the executive committee and regional delegate to the European Lawyers' Association, former vice president (UAE); founding member of the European Institute for Human Rights for Lawyers (IDHAE); founder and honorary president of the Lawyers' Association of Vienna ("Anwaltsclub").

Publications. Author or co-author of various books in German or English: Family Law in Europe; Family Law - Jurisdictional Comparisons; International Pre-Nuptial and Post-Nuptial Agreements; Scheidungsratgeber (The Divorce Advisor); Scheidungsratgeber für Männer (The Divorce Advisor for Men); Frauen fühlen anders. Männer auch (Women's feelings are different. So are men's); Schöner Scheitern (Better Failing); Warum heute noch heiraten? (Marriage - Still the thing to do?); Intimität, Sexualität und Tabuisierung im Alter (Intimacy, Sexuality, Taboo in old age); Leidenschaften (Passions); Schlager und Treffer (Hits and Misses); and author of various articles.


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