Divorcing An Austrian Citizen: Navigating The Legal Process

Divorce is a challenging process, and when one spouse is an Austrian citizen, there are specific considerations to be made. Austrian divorce law is governed by section 46 of the Austrian Marriage Act, and there are several steps to filing for divorce in Austria, including submitting a petition to the district court, attending a hearing, and receiving the final divorce papers. In addition, there are residency requirements for divorce, and the division of assets and spousal support must be determined. If you are not an Austrian citizen, you may need to consider the impact of divorce on your residence permit.

Grounds for divorce

To file for divorce in Austria, a couple must have been married for at least six months and there must be grounds for divorce. There are three types of divorce under Austrian law: divorce by consent, divorce following separation, and at-fault divorce.

Divorce by consent can be jointly requested if the spouses agree to do so, with the condition that the marriage partnership has ceased at least six months prior. If the couple has been living apart for three years, there is no need to assess or establish fault for the divorce.

In the case of an at-fault divorce, a spouse may file for divorce if the marriage has broken down irretrievably due to the actions of the other party. This may include serious dishonourable or immoral conduct, infidelity, violence, or mental illness. The spouse who is at fault must pay enough maintenance to enable the other partner to maintain their lifestyle. If both spouses are at fault or neither is more to blame than the other, the higher earner will usually have to pay spousal maintenance to the other.

The basic ground for divorce is the irretrievable breakdown of the marriage. The breakdown may be the result of serious marital misconduct on the part of one partner, particularly when one spouse has been unfaithful, inflicted physical violence, or caused serious psychological suffering on the other. Even if the behaviour cannot be regarded as marital misconduct because it is due to a mental illness or comparable disorder, but the marriage has nevertheless broken down so irretrievably that there is no prospect of resumption of a true marital relationship, the other spouse may petition for divorce. In all such cases, the spouse petitioning for divorce must prove the grounds on which they rely.

Court hearing

To initiate divorce proceedings, a couple must submit a petition for divorce to their district court, the Bezirksgericht. The petition should be accompanied by supporting documents, including the marriage certificate, proof of citizenship and identity documents for each spouse, and birth certificates of children. The court will then set a date for a hearing, which both spouses must attend in person.

During the court hearing, each spouse will be questioned, and the terms of the divorce will be agreed upon. The court will decide on matters such as spousal maintenance and the division of matrimonial assets and savings. If there is a prenuptial agreement, the court will consider it when dividing the marital property. The court will also take into account any assets that each individual brought into the marriage, inherited, or were gifted, which are excluded from the division.

In an at-fault divorce, the spouse who is at fault may be required to pay spousal maintenance to enable the other partner to maintain their lifestyle. However, if both spouses are at fault or neither is more to blame, the higher earner will typically be responsible for spousal maintenance. The court will determine whether spousal maintenance is appropriate and, if so, the amount to be paid.

If there are children involved, the court will also consider child custody arrangements. Under Austrian law, the term "habitual residence" is important in determining the court's jurisdiction over child custody matters. If the children are "habitually resident" in Austria, meaning they have some degree of integration into the social and family environment, the Austrian courts will have full authority to modify any existing custody orders.

It is important to note that divorce proceedings in Austria can become costly if the case is contentious or complicated. Engaging the services of an Austrian attorney is recommended to navigate the formal requirements and potential complexities of the divorce process. Additionally, mediation is an option to avoid the higher costs of a court trial and maintain confidentiality. Furthermore, mediation allows the couple to assert more control over the terms of their divorce, as courts will decide these terms if the case goes to trial.

Division of assets

When it comes to dividing assets in a divorce, there are two potential pathways: agreeing on your own terms, which can be formalised with a Consent Order from the Family Court or a Binding Financial Agreement; or seeking resolution through court-mandated financial orders if you cannot come to an agreement.

In Austria, the court will divide matrimonial assets (such as the marital home) and matrimonial savings (assets accumulated while living together during the marriage) equitably. However, anything that each individual brought to the marriage, inherited, or was gifted is excluded from this division. If there is a prenuptial agreement, the courts will refer to this when dividing the marital property.

In addition to the family home, other real estate assets may also be considered in a divorce. These assets can include investment properties, holiday homes, and rental properties. The division of these assets will usually be based on who owns them and what their financial need for them is. If either party owns a business, that business will generally be considered an asset in the divorce. The value of the business will be determined by appraisers, and it will then be divided between the parties based on who has the greater financial need for it. Personal property includes all of the belongings that each party owns, such as furniture, cars, jewellery, art, and clothing. Dividing property is usually done through negotiation between the parties or through mediation. If the parties cannot agree on how to divide their personal property, a judge may make the decision for them.

It is also important to consider any debts that are in the name of either party. These can include credit cards, medical bills, student loans, and mortgages. The division of these debts will usually be based on who owns them. By understanding the different types of assets that may be considered in a divorce, you can ensure that your interests are protected and that you receive a fair share of the asset pool.

If you are a non-EU citizen and have a residence permit for family reunification, you may need to consider the impact of your divorce on your residence status. In some cases, your residence permit may be tied to your marriage, and you may need to take steps to maintain your legal right to reside in Austria.

Spousal maintenance

In Austria, spousal maintenance is determined by the courts, which consider the specific circumstances of each case. The Austrian courts will decide whether spousal maintenance is appropriate and, if so, the amount to be paid. This decision is based on factors such as the spouses' ability to contribute to their income and whether children are involved. Typically, spousal support amounts to 40% of the family income minus the claimant's income.

To be eligible for spousal maintenance, the receiving spouse must demonstrate their inability to adequately support themselves. This may be due to factors such as caring for children, age, health issues, or a lack of income-generating capacity relative to the other spouse. The paying spouse's capacity to provide support is also taken into account. Spousal maintenance can be temporary, usually granted during the separation process until a final order is made, or permanent, which is less common and granted only in cases of clear long-term support needs.

The application process for spousal maintenance in Austria involves filing financial statements with the court, including details of income, expenses, assets, and liabilities. The applicant must prove their inability to support themselves adequately and the other spouse's capacity to pay. It is recommended to seek legal advice when navigating the spousal maintenance process to ensure one's rights and obligations are understood.

Child custody

According to Austrian law, if a child is born within a marriage or if the parents marry after the child's birth, both parents are automatically granted custody (Section 177(1) of the Austrian Civil Code). In cases where the child is born out of wedlock, only the mother is legally granted custody (first sentence, Section 177(2) of the Austrian Civil Code). However, unmarried parents can also be granted joint custody if they make a declaration before a registrar, provided that custody has not already been settled in court (second sentence, Section 177(2) of the Austrian Civil Code).

If the parents do not share a household, they must decide on the child's primary carer. They can either come to an agreement or submit their preferred arrangement to the court (Section 177(3) of the Austrian Civil Code). The court will always prioritise the best interests of the child when making decisions regarding custody (Section 180 of the Austrian Civil Code).

In cases of international divorce, the courts in Austria will have jurisdiction over all matters concerning child custody once the child becomes a "habitual resident" of the country. According to the Court of Justice of the European Union, a child is considered a habitual resident of Austria if they exhibit "some degree of integration" into a social and family environment. The Supreme Court of Austria has further clarified that a child is presumed to be habitually resident in Austria after living in the country for at least six months.

During divorce proceedings in Austria, the court will also rule on child support, taking into account the parents' ability to contribute and the child's needs. The amount of child support is typically determined as a percentage of the parents' monthly income.

Frequently asked questions