Family law (Austria)

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The Family Law in Austria includes the marriage law , the right of parents and children (esp. Children's Law ), and the custody of another person. The basis of the family law provisions in Austria is the General Civil Code (ABGB). With the introduction of the Marriage Act (EheG) on July 6, 1938, however, numerous provisions regulating the legal relationships in marriage were suspended. In the interests of equality and the best interests of the child , the Great Family Law Reform was carried out in the 1960s and 1970s .

Marriage law

betrothal

The betrothal or a provisional promise to marry does not result in any legal obligation, neither for entering into the marriage itself nor for the performance of what was stipulated in the event of resignation (Section 45 ABGB).

Definition marriage

Marriage is a contract under private law. The principle of compulsory civil marriage applies in Austria .

After the decision of the Constitutional Court in Vienna in 2017, the institution of marriage was also opened to same-sex couples.

The current term marriage was redefined in § 44 ABGB:

“Family relationships are established through the marriage contract. In the marriage contract, two persons legally declare their will to live in inseparable communion, to father children, to raise them, and to provide mutual assistance. "

Marriage

  • Section 15 (1) EheG: "A marriage only comes about if the marriage is concluded in front of a [appointed] registrar."
  • Section 15 (2) EheG: "A registrar within the meaning of paragraph 1 also applies to anyone who, without being a registrar, has publicly exercised the office of a registrar [as a so-called pseudo-registrar] and has entered the marriage in the marriage register."

While according to the prevailing legal opinion, the marriage according to Paragraph 1 comes about with declarative effect, regardless of the entry in the marriage register and regardless of the presence of witnesses; so the marriage before the bogus registrar according to para. 2 only takes place with the entry in the marriage register.

Form requirement

According to § 17 EheG, marriage is required for validity

  • Paragraph 1: the personal and simultaneous presence of the engaged couple and their mutual will to enter into marriage;
  • Paragraph 2: unconditional and unconditional submission of declarations.

Dissolution of marriage

Nullity of marriage

According to § 20 EheG, the marriage is only void in those cases in which this is determined in §§ 21 to 25 of the EheG.

In Sections 21-25 of the EheG, the grounds for invalidity are exhaustively (exhaustively) listed:

  • § 21: Defect of form (if the marriage was not concluded in the form prescribed in § 17 - see above).
  • § 22: Lack of business or judgment
  • Section 23: Named marriage and nationality marriage
  • § 24: Double marriage
  • § 25: Relationship ( blood relationship !)

The marriage must be annulled by judgment. If this does not happen, the marriage continues to apply (Section 27 EheG). According to Section 28, only the public prosecutor has the right to bring legal action in the case of marriages of names and citizenship (para. 1). In all other cases, each of the spouses has the right to bring an action, and in the case of a double marriage also to the spouse of the previous marriage (Paragraph 2.)

Annulment of the marriage

The reasons for annulment of the marriage are exhaustively regulated in Sections 33-39 EheG:

  • § 35: Lack of consent of the legal representative in the event of marriage by a person with limited legal capacity
  • Section 36: Error about the marriage or about the person of the other spouse:
      • When a spouse did not know that the marriage was (at all);
      • if a spouse knew about the marriage but (actually) did not want a declaration of marriage;
      • Error about the person of the other spouse
    • Section 37: Error about circumstances affecting the person of the other spouse. (Concerning circumstances which, with knowledge of the facts and proper appreciation of the nature of the marriage, would have prevented the spouse from entering into the marriage.)
    • § 38: malicious deception
    • Section 39: Threat

divorce

The marriage law recognizes two groups of divorces:

  • Division of fault (§ 49 EheG)
  • Divorce for other reasons (Sections 50-55a EheG)

In the case of a divorce at fault, a spouse can apply for a divorce if the other has culpably shattered the marriage so deeply through a serious misconduct (e.g. adultery, physical violence, inflicting serious mental suffering etc.) or through dishonorable or immoral behavior that the marriage is so deeply ruined that the restoration a cohabitation corresponding to their nature cannot be expected (Section 49 EheG).

The most common form of divorce is mutual consent (friendly divorce). This is regulated in § 55a EheG.

Legal relationships between parents and children

literature

Individual evidence

  1. ↑ VfGH 04.12.2017, G 258/2017. Accessed May 1, 2019 .