Austria Divorce & Family Law

If you are looking for a divorce in Austria or your situation relates to Austria, then the rules are different to some other European countries. Austria still offers an ‘at fault’ divorce option, and this can have an effect on the division of assets and maintenance once your marriage has broken down.

Divorce laws in Austria

There are four types of divorce in Austria:

• ‘at fault’ divorce
• divorce following separation for three years
• divorce for other reasons
• mutual consent divorce.

‘At fault’ divorce

To petition for an ‘at fault’ divorce, the other spouse must have done something to cause the irretrievable breakdown of your marriage. This could be adultery, dishonesty, physical violent or cruelty.

Note that such a petition will not be considered if you forgave a wrongdoing or the courts do not believe it contributed to the end of your marriage. You also have to file for divorce within six months from the time when you came to know about the reason for divorce.

Divorce following separation

If you have been living apart for three years, either of you may file a petition for divorce on the grounds that your marriage has broken down irretrievably.

Divorce for other reasons

You can also petition for divorce citing other reasons; for example, if your spouse is mentally ill or suffers from a highly infectious or contagious disease which is not expected to be cured for the foreseeable future.

Mutual consent divorce

If you have been separated for at least six months and your marriage has irretrievably broken down, you can submit a joint petition for divorce.

You must come to a written agreement on maintenance, child support, division of marital property and arrangements regarding residence, custody and contact for your children.

Child custody laws on divorce in Austria

When you divorce in Austria, both of you generally retain joint custody of your child. While your child may have a ‘first home’ where they spend most of the time, you both retain parental responsibility.

You can also agree in court that one parent has sole parental responsibility or that one parent’s parental responsibility is limited to specific issues. And, since 2013, a court can award joint parental responsibility even against the wishes of one or both parents if it believes that this is in your child’s best interests.

You can also make your own custody and contact arrangements and agree these between you.

Austria is a party to the Hague Convention on Child Abduction and adheres to the Brussels IIa regulations.

This means that if your child is taken out of Austria without your permission, you can approach authorities in another Convention country to ensure the swift return of your ‘abducted’ child.

If your child is taken to Austria from another country, you can also apply to have them returned to your own country.

Financial settlements on divorce in Austria

Following divorce in Austria, you can come to an agreement to divide your property and assets as you wish. Normally this is done in one of three ways:

• ‘mutual renunciation’ – separation of assets during the marriage is maintained after divorce
• dividing any property held in common
• transferring property from one of you to the other.

If you can’t come to an agreement between yourselves, you can ask the court to divide jointly-owned property. ‘Matrimonial assets’ (the marital home and other items used that were used in your day-to-day married life) and ‘matrimonial savings’ (investments you accumulated while you were married) will be split by the court.

Any assets you brought to the marriage, were gifted by a third party, or that you inherited will be excluded from the division of any property.

If your divorce has been granted on an ‘at fault’ basis, then this can affect a financial settlement. If you are the spouse ‘at fault’, you will have to pay maintenance to the other spouse to maintain their lifestyle if:

• they do not have enough income of their own
• they aren’t in a position to earn enough income
• they don’t have enough assets to live on.

If you have no income of your own, then you will typically be entitled to 33% of your former spouse’s net income.

If you are entitled to maintenance then you must take on work if this is reasonable, depending on your age, health and work experience. If you have an income then you will typically be entitled to maintenance equivalent to 40% of your joint income, less the amount you earn.

Note that if paying maintenance jeopardises the financial security of the person ordered to pay, it can be reduced to an equitable level.

If both of you were ‘at fault’ for the divorce, the court may award maintenance to the spouse who is unable to maintain themselves. This will be based on the needs, assets and earnings of the other party, and this may be time-limited.

If you divorce by mutual consent you can agree maintenance between you, or agree to forfeit your right to maintenance.