Amicable Divorce – Process, Requirements and Tips
Attorney specializing in family law & divorces, founder of the law firm IBESICH
Legal Notice/Disclaimer: The following information is intended for general guidance only and does not replace individual legal advice. For advice tailored to your specific situation, please consult a lawyer or another qualified legal professional.
- Requirements:
- Both spouses must agree to the divorce
- The marriage must be considered irretrievably broken
- The marital relationship must have been dissolved for at least 6 months
- The marriage must have lasted at least 6 months
- With children: mandatory parental counseling must be completed
- Divorce settlement agreement
(agreement on all points):- Division of assets
- Spousal support
- Custody, child support, visitation rights
- Procedure:
- Both spouses jointly file a divorce petition
- The court sets a hearing date
- The agreement is confirmed
- The decree is issued
- Duration & Effort:
- Depending on complexity (assets, children, willingness to compromise) and court workload, approximately 2–4 months from filing
- Contested divorce takes significantly longer
Table of Contents
Requirements for a Mutual Divorce
Austrian law sets out several clear requirements that must be met for a court to approve a mutual divorce. The key point is that both spouses must willingly and without coercion wish to divorce and consider the marriage to be irretrievably broken down. Specifically, the following conditions must be fulfilled:
- Separation period: The marital relationship must have been terminated for at least six months. This means that both spouses must acknowledge that they have been living separately for at least six months.
Important: It is not strictly necessary to live at different addresses during this time — even if the couple still resides in the same house, the period counts as separation as long as there is no shared household in the marital sense (separate bedrooms, separate finances, etc.). What matters is that the spouses no longer live together “as a married couple.” - Irretrievable breakdown: Both partners must regard the marriage as permanently over. Mutual consent requires that neither insists on continuing the marriage. It is sufficient that both agree the relationship has definitively failed.
- Joint intention to divorce: The application for divorce must be submitted jointly. A mutual divorce means that both appear before the court together or file a joint petition. A single spouse cannot obtain a mutual divorce against the will of the other.
In practice, both spouses sign the divorce petition. - Agreement on consequences: A full agreement on the consequences of the divorce is essential. All relevant matters — from support to asset division — must be settled between the spouses, either in writing or verbally during the court hearing. If there is disagreement on even one point, the court cannot pronounce the divorce by mutual consent.
Only when all these requirements are met can the divorce petition be successfully filed. If the spouses are uncertain whether the conditions are fulfilled (for example, whether the six-month period has elapsed), it is advisable to seek legal advice beforehand. In general, however, a mutual divorce offers a way to end the marriage without blame or lengthy disputes — provided both parties work together toward the same goal.
Divorce Settlement Agreement: Agreement on All Consequences
The core of a mutual divorce is the so-called divorce settlement agreement. In it, the spouses set out in a binding manner how the consequences associated with the divorce will be regulated.
The law requires that this agreement covers all essential points:
- Asset division: How will the joint assets and any debts be divided?
- Spousal support: Do the spouses have mutual support claims after the divorce, or will support be waived?
- Custody and child support: For minor children in common: How will custody (parental responsibility) be exercised? With whom will the children primarily reside, and in what amount will the other parent pay child support (alimony)?
- Contact/visitation rights: What visitation or contact arrangements apply for the parent who does not live in the same household as the children? (e.g., every second weekend, division of holidays, etc.)
In practice, additional individual arrangements can be included in the divorce settlement agreement, such as the division of household items, the assumption of debts, or the use of the marital home until a certain date. What matters is that the agreement is complete, fair, and clear—subsequent disputes should be avoided wherever possible. Both parties sign the agreement, either in writing in advance (e.g., as an attachment to the divorce petition) or orally directly before the judge at the divorce hearing, where it is recorded in the minutes.
Example of a divorce agreement: Mr. A and Ms. B agree to split the assets saved during the marriage (including savings accounts and securities) equally. The marital home will continue to be occupied by Ms. B; Mr. A receives a balancing payment for this. Regarding spousal support, both agree to waive it—both are employed and can provide for themselves. With respect to the children, joint custody remains in place; the children primarily live with the mother (Ms. B). The father (Mr. A) has contact every second weekend and pays monthly support of €400 per child. A and B put these arrangements in writing and submit them to the court as their divorce settlement agreement.
The above example shows how comprehensive a divorce settlement agreement must be. It covers financial matters as well as issues relating to the children. The court requires such a settlement to ensure that no unresolved issues remain after the divorce.
If in doubt, the drafting of a fair agreement can be done with the support of a lawyer, so that both parties can live with the outcome. A good divorce settlement is balanced—neither party should accept major disadvantages merely for the sake of peace. It is worthwhile to negotiate carefully and with foresight.
Procedure of a Mutual Divorce
Once the decision for a mutual divorce has been made and an agreement has been reached, the question arises as to the exact procedure. Compared to a contested divorce, which can involve multiple hearings and proceedings, the procedure of a mutual divorce is relatively straightforward.
Couples typically go through the following steps:
- Information and consultation: At the beginning, the spouses inform themselves about their rights and obligations. Many couples seek an initial consultation with a divorce lawyer to clarify open questions (e.g., regarding asset division or support). In Vienna and other cities, there are specialized family law firms that assist during this stage.
- Preparation of the agreement: The next step is to draft the divorce settlement agreement. Ideally, the partners reach agreement on all points without pressure. The agreement can be created informally; there are templates available, but the content should always be tailored to the specific situation. Each point (assets, support, children, debts) must be specified. Both parties should review the draft carefully — once signed, it is binding.
- Parenting counseling (if children are involved): If the spouses have minor children together, they must complete a parenting counseling session before submitting or finalizing the agreement. This special counseling under § 95 (1a) of the Non-Contentious Proceedings Act ensures that parents are aware of the needs of their children during a divorce. Across Austria — particularly in metropolitan areas like Vienna — there are recognized counseling centers offering these short courses (usually a few hours). At the end, participants receive a confirmation to be submitted to the court.
- Filing the divorce petition: Once the agreement (and, if applicable, the counseling certificate) is ready, the petition for mutual divorce is filed with the competent district court. Jurisdiction lies with the district court in whose area the couple last had their common habitual residence.
Example: If the couple last lived together in Vienna-Liesing, the District Court of Liesing is responsible. The petition can be submitted in writing — there is an official form for this — or orally recorded at the court during designated office hours. The petition must include important documents such as the marriage certificate, proof of residence, birth certificates of the children, and evidence of joint assets. Both spouses must sign the petition. - Court hearing: After the petition has been received, the court sets a date for the oral hearing. Both spouses must appear in person at this divorce hearing. The judge first checks whether the conditions are met (six months of separation). Then the judge questions both partners to confirm that they wish to divorce voluntarily and definitively.
If necessary, the divorce settlement agreement is reviewed again. If it has not yet been submitted in writing, it can now be concluded orally and recorded by the court.
Important: Both parties must declare explicitly and independently that they wish to divorce — this expression of mutual intent is essential. - Divorce decree and finalization: If all requirements are met and there are no concerns (for example, regarding the welfare of children), the court grants the divorce by decree. The divorce decree is then delivered to both parties. Theoretically, an appeal could be filed within 14 days, but in genuine mutual cases, this rarely occurs. After 14 days, the decree becomes final, and the marriage is dissolved. The parties can also waive their right to appeal during the hearing, in which case the decree becomes final immediately.
Important: The divorce only becomes legally effective upon delivery or finalization of the decree — a new marriage can only be entered into after receiving the final divorce decree. - After the divorce: Once the decree is final, the new status of “divorced” takes effect. Each ex-spouse is free to remarry, and names and civil status records are updated accordingly. Any subsequent steps may include the division of pension entitlements (for example, a pension split for child-rearing periods) or notifications to insurance companies and authorities. These matters fall outside the actual divorce procedure.
Note: Until the decree becomes final, either spouse may withdraw the divorce petition — in that case, the divorce will not proceed. In practice, this happens rarely, but if the couple reconciles during the process, this option remains available.
Divorce with Children: Custody, Support, and Parenting Counseling
When a divorce involves children, special considerations must be made. In a mutual divorce, parents usually place great importance on creating a fair and stable plan in the best interests of the children.
The following points should be taken into account:
- Custody (Parental Responsibility): In Austria, joint parental custody generally remains in place even after divorce. This means that both parents retain custody of their minor children, unless the court decides otherwise.
However, the parents must determine with which parent the child will have their main residence (primary place of living). That parent will then make everyday decisions, while the other parent has the right to be involved in important matters and, of course, the right to maintain contact. - Residence and contact arrangements: Part of the divorce settlement agreement concerns how the children will be cared for in practice. For example, it can be agreed that the children live with the mother during the week and the father cares for them every second weekend and for half of the holidays. Such contact or visitation arrangements should be as detailed and age-appropriate as possible to avoid conflicts.
- Child support (Alimony): The parent with whom the children do not primarily live is generally obliged to pay financial support. The amount of alimony is based on the paying parent’s income and the child’s age (so-called standard maintenance rates). Within a mutual divorce, the exact amount and payment method can be agreed upon. While common percentage guidelines are often used, individual arrangements are also possible. What matters most is that the support serves the child’s best interests.
- Parenting counseling under § 95 Non-Contentious Proceedings Act: By law, parents must attend counseling about the needs of their children in separation situations before a mutual divorce can be granted. This counseling usually lasts one to two hours and can be done through psychological or family counseling centers, or certified independent experts. Without proof of attendance at this counseling, the court cannot approve the divorce. Therefore, this appointment should be scheduled early. The costs are modest and may be waived in cases of financial hardship.
Example: Ms. C and Mr. D have two children (aged 5 and 8). In their mutual divorce, they agree to continue exercising joint custody. The children will live with the mother, while the father will have extensive visitation rights: every second weekend from Friday to Sunday, and every Wednesday afternoon. During the summer holidays, they follow an alternating schedule in which each parent takes care of the children for two consecutive weeks.
The father agrees to pay monthly alimony in the agreed amount (e.g., 20% of his net income for both children, divided according to age). Before the court, C and D also submit proof that they have attended parenting counseling. The court checks whether these arrangements serve the children’s best interests — since they do, there is nothing to prevent the divorce from being finalized.
A mutual divorce offers parents the opportunity to shape their children’s future together in a cooperative way. Ideally, parents maintain a constructive and respectful approach even after separation and agree on flexible arrangements. After all, even post-divorce, they remain a parenting team — and minimizing parental conflict helps protect the children’s well-being. Courts appreciate when parents reach amicable solutions and will generally approve a well-thought-out agreement without issue.
Division of Assets in a Mutual Divorce
One of the most sensitive issues in any divorce is the question: “Who gets what?”
Under Austrian divorce law, the general marital property regime is separation of property during marriage. This means that, in principle, each spouse formally owns whatever was acquired in their own name. Nevertheless, the law provides that, in the event of a divorce, there must be a division of the so-called marital assets and marital savings.
Simply put, these are all assets that the spouses acquired or saved during the marriage for joint purposes — for example, furniture, cars, savings in joint accounts, the marital home, etc. Excluded from the division are, for instance, items one partner owned before the marriage, gifts and inheritances, personal belongings, and anything used exclusively for one partner’s professional activity.
In a mutual divorce, the spouses are free to determine the division of assets in their divorce settlement agreement. The law does not prescribe a fixed formula — what matters is that both sides agree to the arrangement. In many cases, an approximately equal division is sought, particularly in long marriages or when both partners contributed roughly equally to their shared wealth. However, the parties may also agree to a different distribution if they consider it fair (for example, one keeps the apartment while the other receives a larger share of savings).
An example of an asset division: Suppose a couple owns a family house, two cars, and savings. Their agreement could state: “The spouses agree to sell the single-family home in XY for an estimated value of €300,000 and to divide the proceeds equally. Spouse 1 keeps the car of brand A, Spouse 2 the car of brand B. The savings in joint account number XYZ in the amount of €20,000 are divided 50:50, with €10,000 transferred to each spouse’s individual account.” The agreement could also specify who continues to repay any existing loans. It is important not to overlook any asset or debt — an incomplete contract could lead to future disputes.
If the spouses cannot reach an agreement on the division of assets, a mutual divorce is still possible, but the asset division must then be resolved later in court. There is a separate division procedure for this, which must be initiated within one year of the divorce becoming final. In a genuine mutual divorce, however, the spouses generally try to avoid this step and settle everything amicably. After all, a private agreement saves time, money, and stress. The courts will nonetheless briefly review whether the asset agreement appears reasonable — if one partner suffers a major disadvantage, the court may raise questions. Overall, however, the rule is: what both parties sign will be accepted.
Spousal Support After Divorce
A frequently emotional topic is spousal support after divorce. In Austria, there are essentially two different situations:
- Support after a contested divorce: If a court has ruled on the divorce and assigned predominant fault for the breakdown of the marriage to one spouse (e.g., due to adultery, violence, etc.), the spouse found at fault may be required to pay maintenance to the other. In cases of shared fault, there is usually no entitlement to support (except in special hardship cases). This fault-based principle applies only when the divorce is not mutual.
- Support in a mutual divorce: In this case, fault is not legally determined. Instead, the spouses agree on a maintenance arrangement or on a mutual waiver of support. In many mutual divorces, both parties waive post-marital support, particularly when they earn similar incomes or are financially independent. Alternatively, they may agree that one spouse pays the other a monthly amount of X, either for a fixed term or indefinitely. This agreement becomes part of the divorce settlement and is binding.
Example: One spouse has spent years managing the household and caring for the children, while the other focused on a career. To provide financial balance, they agree that the higher-earning spouse will pay monthly support of €500 for three years to the economically weaker partner. Such matters are subject to negotiation — without agreement on this point, the divorce cannot proceed.
The flexibility of a mutual divorce allows for tailored solutions but also carries risks: one spouse may waive support out of a desire to maintain peace, even though they are entitled to it. Therefore, it is advisable: do not make hasty concessions, especially regarding maintenance. It is important to realistically assess one’s financial future and seek professional advice if uncertain. A waiver of support is generally final, while a fixed maintenance amount can only be modified later under limited circumstances. Both parties should carefully consider what is fair and sustainable.
Court Fees and Other Divorce Costs
A divorce also involves costs. However, in the case of a mutual divorce, these are much more manageable than in lengthy contested proceedings.
The most important cost items are:
- Court fees: For the joint divorce petition, a flat fee of currently 384 € is charged. If a court hearing with settlement takes place (which is practically always the case since the agreement is recorded), an additional fee of 384 € applies. In total, court fees amount to around 768 €. These fees apply jointly to both spouses, who are jointly liable — meaning that, in theory, the court could demand the full amount from either one. In practice, payment is usually made at the time of filing or during the hearing, and the amount is often split equally between both partners.
- Property settlements: If the divorce involves the transfer of real estate or changes to the land register (e.g., transferring the marital home to one spouse), an additional fee is incurred. This is a type of “flat fee” for real estate matters within the divorce agreement. Notary costs may also arise if contracts are certified or land register entries are made.
- Legal fees: In a mutual divorce, hiring a lawyer is not mandatory — there is no legal requirement for attorney representation. Many couples handle the mutual divorce themselves to save costs. However, some still seek advice or assistance in drafting the agreement from a lawyer. The costs vary depending on the firm and the complexity of the case.
Important to know: In mutual divorce proceedings, each party bears their own legal fees; there is no “cost reimbursement” from the other side as in civil litigation. Some couples use a single lawyer to prepare the agreement — formally, the lawyer represents one spouse, but in practice, both are advised. This can be more cost-effective but may be problematic if conflicts of interest arise. - Post-divorce matters: After the divorce, additional indirect costs may arise — for example, new rental contracts, changes to vehicle registration, insurance updates, or drafting new wills. These are not part of the court costs but should be considered in post-divorce financial planning.
Good to know: Couples with low income can apply for legal aid (similar to cost assistance) to cover court and attorney fees. If granted, the state initially covers these costs; however, they may need to be repaid later if the financial situation improves. Legal aid ensures that even those with limited means can proceed with a divorce.
Duration of a Mutual Divorce
For many couples seeking divorce, the question of duration is crucial. A mutual divorce can usually be completed fairly quickly, as it typically requires only one court hearing and no lengthy evidence proceedings. The exact timeline varies from case to case, but general experience shows:
- From application to decree: In many cases, it takes about 2 to 4 months for the divorce to become final. In favorable situations (low court workload, all documents submitted, uncomplicated divorce settlement), it can even be completed sooner. Some courts schedule hearings just a few weeks after filing, while others take longer — there are regional differences.
- Time in court: The biggest time factor is often the waiting period for the court hearing date. In cities like Vienna, where there are many divorce cases, it may take longer to get a date. In rural districts, the process is often faster. Court closure periods (such as summer breaks) can also play a role.
- Complexity of the agreement: If the divorce involves extensive matters — for example, property sales, complex assets, or difficult custody arrangements — preparation may take longer. As long as the spouses are still negotiating their agreement, the application is delayed. Simple cases (no real estate, no children, both employed) are completed most quickly.
- With or without appeal: In theory, the divorce becomes final 14 days after the decree is delivered. If both parties waive the right to appeal during the hearing, it becomes final immediately. In practice, couples in mutual divorces often do this directly, avoiding the waiting period altogether.
Compared to a contested divorce (which can take 1–2 years or longer, especially when multiple proceedings — divorce, support, custody, assets — must be handled separately), a mutual divorce is completed much faster. For those involved, this means less time spent in emotional and legal uncertainty. Nevertheless, couples should take the necessary time to negotiate a sound divorce agreement rather than rushing into one that might later cause regret.
Mutual Divorce Without a Lawyer – Is It Possible?
Many couples wonder whether they absolutely need a lawyer for a mutual divorce or if it can be done without legal assistance. The answer is: Yes, it is possible to get a mutual divorce without a lawyer. In Austria, there is no obligation to hire a lawyer for mutual divorces, and in fact, many couples file their petition themselves. This naturally saves money. However, some caution is advisable:
- Legal advice recommended: Even though a lawyer is not required, professional legal advice can be extremely valuable. A family law attorney can check whether the proposed agreement truly covers all relevant points and is fair. They can point out potential pitfalls — such as hidden pension entitlements or tax implications — that laypersons often overlook. Therefore, at least one consultation for an initial assessment is highly recommended. This can help avoid costly mistakes.
- One lawyer for both spouses? It is often asked whether both spouses can “share” a lawyer to save costs. Formally, a lawyer can only represent one party, since otherwise a conflict of interest would exist. In practice, however, it often happens that a lawyer drafts the divorce petition and settlement agreement, lists one spouse as their client, and the other participates without their own lawyer. This is permissible but requires great trust between the spouses and the lawyer. Both should be aware that the lawyer officially represents only one of them — complete neutrality cannot be expected. Nevertheless, many couples choose this option when they are in full agreement.
- No lawyer requirement does not mean “no risk”: Those who proceed without legal assistance must pay close attention to the completeness and accuracy of all information. Court forms and official letters can be technical in wording. Errors in the application can lead to delays. And an unbalanced agreement (e.g., one spouse unknowingly waives valuable pension rights) can later lead to regret. Therefore, if there is any uncertainty, it is better to seek help — whether from a lawyer or a trained counseling center.
In summary, a mutual divorce without a lawyer can work, especially if the spouses are young, have been married for a short time, have no children, and possess little joint property — in other words, if things are simple. In more complex situations, the guidance of a legal professional is advisable. The goal should always be to reach a sustainable agreement for the future — and sometimes it’s wise to have an experienced professional review the draft to ensure that outcome.
FAQ – Frequently Asked Questions About Mutual Divorce
How long does a mutual divorce take in Austria?
Mutual divorces are usually finalized within a few months. On average, you can expect about 2 to 4 months from the filing of the petition until the divorce becomes final. In simple cases without complicated follow-up matters, it may take even less time. The key factors are the waiting period for a court date and whether all documents are complete. By comparison, a contested divorce generally takes much longer (often one year or more), as several hearings may be required.
How much does a mutual divorce cost?
The court fees for a mutual divorce amount to 768 € (as of 2025). This includes 384 € for the divorce petition and an additional 384 € for the court hearing with settlement. If a property transfer is involved, the court fee increases. Additional costs may include lawyer’s fees (if you hire one) and the mandatory parenting counseling (for couples with children). Each spouse must cover their own legal fees, as there is no reimbursement from the other side in mutual proceedings.
Do you need a lawyer for a mutual divorce?
No. There is no legal requirement to hire a lawyer, and many couples handle the mutual divorce on their own. However, it can be very helpful to consult a lawyer at least once to ensure that all consequences are covered and no disadvantages are overlooked. A lawyer can, for example, prepare the divorce petition and ensure that the agreement is complete. During the hearing itself, you can proceed without your own lawyer if everything is in agreement — the judge will guide the conversation. If both partners wish, they can consult a single (shared) lawyer to prepare the documents — but in court, that lawyer will formally represent only one of them.
What happens if the spouses don’t agree on all points?
In that case, a mutual divorce is (still) not possible. Complete agreement on all consequences of the divorce is required. If further negotiations are possible, you should continue discussing and only file once consensus is reached. If no agreement can be reached, the only option is a contested divorce. In such a case, one spouse must file a divorce lawsuit and prove a legal ground for divorce (e.g., serious marital misconduct or three years of separation). The court then decides on maintenance, custody, and other matters if no agreement is reached. However, a mutual solution is usually faster, cheaper, and less stressful, so it’s worth trying to find common ground if possible.
Do you really have to be separated for 6 months?
The spouses must acknowledge that they have not been living as a married couple for at least six months before the court can grant a mutual divorce. However, “separated” does not necessarily mean living at different addresses. What matters is that the marital cohabitation has ended — meaning no shared household in the traditional sense. You could theoretically still live under the same roof as long as you manage your finances separately and no longer lead a typical marital life. The six-month period is fixed by law; if it has not yet passed, the court will reject the petition. In exceptional cases, even mutual consent cannot bypass this — you must either wait or file a contested divorce based on other grounds (e.g., fault).
Do both parents keep custody of the children?
In most cases, yes. Joint custody remains in place after a divorce unless the parents request otherwise or the child’s well-being is at risk. This means that both mother and father retain equal parental responsibility after the divorce. However, it must be determined with which parent the children will have their main residence and what visitation schedule the other parent will have. Only if joint custody clearly does not work or endangers the child’s welfare can one parent apply for sole custody — but that would be a separate procedure. In a mutual divorce, most parents aim to remain jointly involved in important decisions concerning their children.
Can you waive post-marital spousal support?
Yes. A mutual waiver of spousal support after divorce is permissible and even common when both spouses are financially independent. The divorce settlement agreement will then specify that neither spouse will claim support from the other. This waiver is legally binding. However, you should carefully consider whether you can and should waive support — if one spouse has little or no income, a limited support payment might be fairer.
Important: Even an agreed support amount usually cannot later be increased or extended, unless both parties agree again. Therefore, the decision should be well thought out. In any case, note that in a mutual divorce there is no automatic court determination of support; what counts is what the spouses agree upon.
What is the difference between a mutual and a contested divorce?
The main difference is that in a mutual divorce, there is no dispute over the reason for divorce. The marriage is dissolved by mutual consent without assigning blame to either party. In a contested divorce, on the other hand, one spouse sues the other, and a recognized ground for divorce must be proven (e.g., adultery, violence, or long-term separation). Accordingly, the procedures differ: A mutual divorce is handled informally in non-contentious proceedings, whereas a contested divorce is a civil trial involving witness testimonies and evidence.
A contested divorce can take a long time and usually results in higher costs (court and attorney fees). A mutual divorce, on the other hand, is voluntary — it requires both parties to cooperate. In a contested divorce, one spouse can enforce it against the other’s will if they can prove the legal grounds. In short: a mutual divorce means cooperation and self-determined agreements, while a contested divorce means confrontation and court decisions. Wherever possible, the mutual option is preferable as it is faster, cheaper, and less stressful for everyone involved.
Sources
- Austrian Federal Portal oesterreich.gv.at
- General information on amicable divorce – Federal Ministry of Justice
- Counseling before an amicable divorce – Federal Chancellery of Austria
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