Divorce in Austria

When and under what conditions can a marriage be dissolved?

Under Austrian divorce law, there are two main types of divorce: divorce based on fault and divorce for other reasons (irretrievable breakdown of the marriage).

In a fault-based divorce, the key issue is that continued cohabitation has become intolerable for the innocent spouse due to a serious breach of marital duties by the other.

A marriage is considered irretrievably broken when the marital relationship has deteriorated to such an extent that restoring a typical marital partnership is no longer reasonable. Mere fault alone is not sufficient – a profound breakdown must be present.

In which cases is a fault-based divorce possible?

A fault-based divorce can be filed if one spouse has caused a profound breakdown of the marriage through a serious breach of marital duties or through immoral or dishonorable behavior, making the continuation of the marriage intolerable.

Serious misconduct may include adultery, physical violence, or unjustified refusal of sexual relations. Also included are abandonment of the shared household without cause, gross neglect of child-rearing, or consistently failing to visit during a prolonged hospital stay.

The misconduct must have been committed willfully and must be the cause of the breakdown.

Behavior may be considered immoral or dishonorable if, for example, a spouse commits a serious criminal offense without the other’s consent or engages in prostitution or pimping.

If fault is established, the court will make a formal finding of fault, which significantly impacts post-divorce spousal support.

Can I still claim a fault-based divorce if I have already forgiven my partner?

No. A fault-based divorce is excluded if the misconduct was expressly or implicitly forgiven by the injured spouse, or if the behavior was not regarded as destructive to the marriage.

How long do I have to assert a ground for divorce?

The ground for divorce must be asserted no later than six months after the injured spouse becomes aware of the misconduct. In cases of ongoing misconduct, the period begins once the behavior has ended. There is also an absolute statute of limitations of ten years, after which a claim can no longer be made.

What other grounds for divorce exist besides fault?

In addition to fault-based divorce, Austrian law provides for other grounds:

• Amicable divorce: If both spouses agree, they can jointly file for divorce, provided the marital relationship has been dissolved for at least six months, both recognize the irretrievable breakdown, and submit a written agreement on support and asset division, as well as on custody and contact rights for minor children, if applicable.
  
  

• Dissolution of cohabitation: If the marital relationship has been dissolved for at least three years and is deemed irretrievably broken, either spouse can file for divorce. Fault is irrelevant. However, divorce may be denied if the court believes reconciliation is possible or the hardship clause applies. After six years of separation, divorce is usually granted.
  
  

• Health-related divorce: If a spouse suffers from a mental illness or similar condition that causes behavior equivalent to serious marital misconduct, but without fault, and the marriage becomes irretrievably broken as a result. Contagious or repulsive diseases may also be grounds, provided there is no foreseeable cure. However, the hardship clause applies: divorce is not allowed if it would be morally unacceptable, e.g., causing undue hardship to the ill spouse.
  
  

How is spousal support determined after divorce?

In principle, spousal support during the marriage ends when the divorce becomes legally binding. However, in some cases, post-divorce support may still be granted. The spouses can agree on this. If no agreement is reached, the court will decide based on the type of divorce and who was primarily at fault for the breakdown.

How is support regulated in a fault-based divorce?

In a fault-based divorce, the primarily at-fault spouse must pay reasonable support if the other spouse’s income is insufficient. The entitled spouse must engage in reasonable employment, if possible. If employment is not possible or only to a limited extent, a reduced support amount may be granted on equitable grounds.

If both spouses are equally at fault, no full support entitlement usually exists. However, a reduced contribution may still be granted on equitable grounds if the spouse cannot support themselves.

Regardless of fault, there are two special situations in which support may be claimed:

• Care-related support
  • If independent employment is not possible due to childcare responsibilities, particularly until the child is five years old.
    
    
• Support due to reduced earning capacity caused by the marriage
  • If a spouse primarily managed the household and cared for children during the marriage, support may be granted after divorce as long as self-sufficiency is unreasonable.
    
    

What applies to support when no fault is established in the divorce decree?

In no-fault divorces, the obligation to pay support depends on whether a finding of fault is included in the judgment. If not, the party who filed for divorce may be required to pay support based on equitable considerations.

If a finding of fault is included – such as in divorces due to dissolution of cohabitation or health-related reasons – similar rules apply as in fault-based divorces. In such cases, the support is calculated similarly to support during the marriage, to protect the financially weaker spouse.

How is marital property divided after divorce?

During the marriage, the principle of separate property applies – unless otherwise agreed – meaning each spouse retains their own assets. After the divorce becomes final, the regime of marital property division applies. Within one year after the divorce, both spouses may request the division of marital property and savings if no mutual agreement has been reached.

Can the statutory division of property be modified?

Yes. The spouses may conclude a mutual property division agreement, which the court must uphold unless it results in an unreasonable disadvantage for one party. The court may only intervene if one spouse would be significantly disadvantaged by the agreement. Often, a prenuptial agreement is signed to regulate financial matters individually – especially regarding real estate.

Which assets and savings are typically divided in a divorce?

Generally, marital assets in use and savings accumulated during the marriage are subject to division. Marital assets in use include items both spouses used in daily life, often including the marital home. Assets brought into the marriage, acquired after the marital relationship ended, or received as gifts or inheritance from third parties are excluded. Businesses or business shares are also excluded. However, exceptions may apply to the marital home if one spouse urgently needs it for livelihood or if the child’s well-being requires it.

What deadlines apply to the division of marital property?

If no mutual agreement has been reached, a claim for division of marital property must be submitted within one year after the divorce becomes final or the marriage is annulled. After this deadline, the right to claim division expires.