Divorce (Austria)

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Divorce, or divorce for short, refers to the dissolution of a marriage by a court decision in the Austrian marriage law .

International jurisdiction

Austrian bodies only check the applicability of a legal system if they are internationally responsible , in particular according to EheVO-II .

Conflict of laws

The regulations on the applicability of Austrian law ( international private law ) are regulated in the federal law on international private law (IPR law).

The applicability of Austrian law is subject to similar provisions ( Section 20 in conjunction with Section 18 of the IPR Act) as those of German law. However, Austrian law does not grant national privileges. Instead, in the case of an Austrian, Austrian law always applies in the case of bi-national marriages; in the case of a foreigner, his / her home law applies to the divorce if, according to the law of the (last) common habitual residence, the marriage cannot be divorced (Section 20 (2) IPR law).

Substantive law

Divorce is one of the ways to end the marriage, along with annulment and annulment of the marriage . Austria has regulated divorce law in the Ehegesetz (EheG), which until 1977 was largely identical to the EheG in Germany. In the meantime, some changes have been made, such as no-fault maintenance (more precisely: maintenance despite fault ).

In legal dogmatic terms, divorce is the " termination " of the long-term obligation marriage , which is only possible for special reasons. Although not exclusively, since the reform of marriage law in 1999, the breakdown principle has preceded the principle of fault . According to the breakdown principle, reasons for divorce are basically “relative”; so z. For example, adultery that does not actually disrupt the community of spouses does not lead to divorce.

Grounds for divorce :

  • Dispute divorce
    • Severance of fault
    • Divorce for other reasons
      • illness
        • due to behavior based on mental disorder
        • due to Mental illness
        • due to contagious or nauseating disease
      • Dissolution of the domestic community
  • Divorce by mutual consent

Severance of fault

The division of fault, regulated in § 49 Marriage Act, requires a

  • serious misconduct or dishonorable and immoral behavior leading to a
  • Marriage breakdown leads.

Serious misconduct in marriage : The law itself demonstratively names adultery , physical violence or severe mental suffering. Further to be mentioned are z. B. Drunkenness , constant quarrels , severe insults, neglect of the household , refusal of the marital apartment .

Breakdown : The marriage is broken when the physical, mental and spiritual community of the spouses is broken, so that a restoration of a life community corresponding to the nature of the marriage cannot be expected.

The (predominantly) guilty party cannot seek divorce. Reaction actions are not considered to be serious misconduct in marriage (e.g. wife refuses to stay at home by a man who is currently drunk). Compensatory acts (e.g. wife refuses - in retaliation - sexual intercourse two days after the husband was completely drunk) do not make the previously innocent (mostly) guilty.

Divorce due to dissolution of the domestic community

This divorce variant, regulated in Section 55 Marriage Act, requires a

Domestic community : This is ended when the marital residential and economic community is ended with the intention of marital behavior. Accordingly, a separation of table and bed (a mensa et toro) is sufficient . Occasional marital attendance is insufficient for the existence of the domestic community. In contrast, a mere spatial separation (e.g. for professional or other reasons) without disruption is irrelevant.

After three years, the divorce is only possible if the reestablishment of the cohabitation cannot be expected or the divorce would not hit the (innocent) defendant more severely (hardship clause) than the plaintiff's rejection of the divorce petition. Such a case of hardship is to be assessed according to the duration of the cohabitation, the welfare of the children, the duration of the annulment, the age of the spouse, etc. In any case, the marriage can be annulled after six years.

In particular, the (predominantly) guilty party can also seek divorce; He must, however, expect to have to pay maintenance according to § 94 ABGB as with an upright marriage (!).

Divorce by mutual consent

This form of divorce, regulated in § 55a Marriage Act, requires the

  • Annulment of the marital partnership for at least half a year , one
  • written agreement as well
  • Breakdown of the marriage , which (purely formally, it is not checked) must be admitted.

Marital partnership : This includes the general marital obligations of Section 90 ABGB ( living together , loyalty , assistance, etc.); a dissolution of the domestic community (see above) in the purely spatial sense does not matter, consequently the latter is also not necessary for the amicable divorce.

The written agreement , which can be classified as a settlement (law) under civil law , must contain an agreement on: main residence of the children, custody , exercise of the right to personal intercourse , maintenance for the children, maintenance of the spouses to one another.

history

In 1783, Joseph II issued a marriage patent for the first time, which differentiated between the ecclesiastical sacrament of marriage and civil marriage . From that point on, at least non-Catholics could get a mutual divorce and thus remarry. This did not apply to Catholics. For them, however, there was the - mostly temporary - separation of table and bed .

From 1812, the provisions of marriage law in the ABGB were only applicable to non-Catholics .

After the annexation of Austria in March 1938, the law on the unification of the law of marriage and divorce in Austria and the rest of the Reich ( marriage law ) of July 6, 1938 came into force throughout the Greater German Reich . The law secularized divorce law and standardized it across all denominations. The EheG differentiated between a divorce due to fault (misconduct) such as adultery or the "refusal of procreation" (§§ 47 ff. EheG) and a divorce for other reasons such as mental illness of a spouse or suffering from an infectious or nauseating disease (§§ 50 ff. EheG). The forgiveness of the injured spouse could conflict with the right to divorce due to fault (Section 56 EheG). The divorce had to be applied for within certain deadlines, which began with the knowledge of the reason for the divorce (§§ 57 ff. EheG). The spouse, divorced alone or mostly guilty, was obliged to support the other and could only receive custody of the children together in exceptional cases.

In the fourth section, the EheG of 1938 contained various special provisions for Austria (§§ 99 ff. EheG). Thus was the separation of the marriage ties after a divorce under the provisions of EheG. The effect of a separation of table and bed, however, was not affected by the entry into force of the EheG.

The current marriage law goes back to the EheG of 1938.

Divorce numbers and statistics

Almost 90% of divorces are consensual . In a legal dispute with a judicial judgment, both parties would have to reckon with two negative consequences: firstly, intimate details from private life would be disclosed to the public (“dirty laundry”), and secondly, the parties would have to obey the judge's orders. In the case of an agreement, albeit a laborious one, however, the parties can largely determine how they regulate the divorce (see also mediation ).

literature

  • Verena Doblhofer: Divorce in Austria - From the Josephine marriage patent to the current legal situation. Diploma thesis, University of Linz, 2012
  • Gerhard Hopf, Georg Kathrein: Marriage law with important subsidiary laws. Manz-Verlag , 3rd edition, 2014

Web links

Individual evidence

  1. ^ History of Divorce in Europe, Asia and Islam Kabel Eins , accessed July 27, 2017
  2. ↑ Petra Schiefer: Separation of table and bed University of Vienna , March 8, 2012
  3. ^ Rudolf K. Schipfer: Did you know that ... information service "or", May 2013 edition
  4. ↑ RGBl. 1938 I 807
  5. ^ Wilhelm Brauneder : The divorce according to the volume in the draft state regulations for Austria under and whether the Enns 1595 and 1609 ( Memento of the original of July 30, 2017 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. Austrian Archive for Canon Law. Quarterly publication 22nd year 1971, pp. 273–290. @1@ 2Template: Webachiv / IABot / repoestrg.info
  6. ↑ Divorce rate down by four percent. Accessed July 12, 2013.