Filing for divorce in Austria
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.
The decision to file for divorce is one of the most important and difficult steps in a marriage. In Austria, divorces must be processed through the court. There are two main paths: the mutual consent divorce (both partners agree) and the contested divorce (one partner sues the other for divorce).
According to Statistik Austria, more than 85% of all divorces in Austria are by mutual consent. A legal dispute, on the other hand, costs time, money, and nerves, and often brings private details to light.
Below you will find a comprehensive overview of what you need to know and prepare in order to file for divorce correctly.
- Filing for divorce: District court, either mutual consent or contested.
- Required documents: Marriage certificate, birth certificates (children), asset and debt statements
- Mutual consent divorce: fast, cost-effective, agreement on all points required (custody, maintenance, division of assets, living arrangements)
- Contested divorce: court determines fault and grounds, time-consuming, higher costs
- Duration: depending on type of divorce; a few months to several years
Table of Contents
Filing for Divorce: An Overview
Anyone who wants to file for divorce must first choose between a mutual consent divorce and a contested divorce. Both procedures begin with the submission of the divorce petition to the competent district court. In Austria, this is generally the district court at the spouses’ last shared place of residence. The first step is therefore the formal filing of the petition with the court.
Requirements: For a mutual consent divorce, both spouses must consider the marriage irretrievably broken and have been separated for at least six months (a physical separation is not mandatory; what matters is the end of the marital cohabitation). They must also agree on all consequences of the divorce. If these conditions are met, they can jointly submit a divorce petition.
If there is no agreement, the only option is a contested divorce – a legally recognized ground for divorce must exist (e.g., a serious matrimonial offense by one partner). In case of doubt, you should seek legal advice early to determine which type of divorce is possible and advisable in your specific case.
First Steps: First clarify whether both partners are willing to divorce. If yes, a mutual consent divorce is recommended due to its time and cost advantages. If not, you must gather possible grounds for divorce (such as documentation of incidents) for a contested divorce.
In both cases, you should assemble the necessary documents and – if minor children are involved – already complete the mandatory parental counseling. You should also consider whether to engage a lawyer or file the petition yourself.
What Types of Divorce Are There?
Under Austrian law, there are primarily two types of divorce – mutual consent divorce and contested divorce. In addition, there are some special forms that we will briefly cover. Here is an overview:
Mutual Consent Divorce
The mutual consent divorce is the simplest way to end a marriage. It applies when both spouses agree that the marriage is irretrievably broken and both want the divorce. As mentioned, the cohabitation must have ended for at least six months. Furthermore, the spouses must agree on all consequences of the divorce. This means a complete agreement must be reached regarding:
- Division of assets: Who gets which joint property? (household items, savings, etc.)
- Debts: How will joint debts be divided or assumed?
- Post-divorce maintenance: Do both waive spousal maintenance, or has a payment been agreed upon?
- Children: How is custody arranged? Who, if anyone, receives sole custody, or does joint custody remain? How is contact with the other parent structured? (keyword visitation rights or contact rights). In addition, the issue of child maintenance (alimony) must be clarified: which parent pays how much for the children?
These points are ideally documented in a written divorce agreement. This document – often called a divorce settlement agreement – must be signed by both parties. It can be drafted privately and then recorded in court, or prepared by a notary or lawyer for legal certainty.
The mutual consent divorce in Austria is conducted in the non-contentious procedure, meaning it is a relatively informal process without plaintiff and defendant. Both partners jointly file a petition for a divorce by mutual consent.
Procedure: If all requirements are met, the joint divorce petition is submitted to the competent district court. The court sets a hearing date, which both parties must attend in person. At this oral hearing, the judge will verify again that all legal conditions are met – in particular, that the marriage is irretrievably broken and an agreement on all consequences of the divorce is in place.
If no written agreement has been submitted yet, it can also be made orally at the hearing and recorded by the court. Finally, a decree is issued dissolving the marriage. This divorce decree becomes final either immediately (if both parties waive the right to appeal) or after 14 days if no appeal is filed. Once the decree is final, the marriage is dissolved.
Contested Divorce
The contested divorce (also called disputed divorce) occurs when the spouses do not agree – either on the divorce itself or on the question of fault. In this case, one spouse must file a divorce lawsuit with the court. Unlike mutual consent divorce, there is here a “plaintiff” (the one who files for divorce) and a “defendant” (the other spouse). A contested divorce requires a ground for divorce. Austrian law essentially recognizes three categories of divorce grounds:
- Fault-based divorce: One spouse has culpably broken the marriage by serious misconduct. Classic examples include adultery, physical or psychological violence, severe insults, or malicious abandonment. The innocent party can enforce the divorce against the other’s will.
- Divorce due to breakdown of the household: No specific fault is present, but the spouses have been living apart for some time and the marriage is broken. As mentioned above, after three years of separation, a divorce petition can be filed even if one partner does not consent. If there are no serious reasons and one partner refuses the divorce, this three-year period must generally be awaited. (Under special circumstances – for example, if the filing spouse alone is at fault and the divorce would be an unreasonable hardship for the other, e.g., due to age – the court can extend the separation period up to six years before granting the divorce.)
- Divorce for other reasons: The law also provides for some special grounds. These include, for example, a severe mental illness of one spouse or a contagious/serious disease making cohabitation unreasonable (§ 50 EheG). Dishonorable or immoral conduct (§ 51 EheG) can also serve as a ground. However, these reasons play a minor role in practice.
In a contested divorce, the petition must specify the ground on which the marriage is to be dissolved, supported by concrete facts and evidence where possible. The procedure for a contested divorce differs significantly from mutual consent divorce: it is a civil court process with hearings, evidence gathering, and ultimately a judgment.
Special Forms of Marriage Dissolution
In addition to the regular divorce, Austrian family law also recognizes special forms of ending a marriage:
- Declaration of nullity: In rare cases, a marriage can be declared null. This applies, for example, if there was a serious formal defect at the time of marriage or if one partner was not capable of marrying (e.g., already married or legally incapacitated). A null marriage is considered void from the start, as if it never existed.
- Annulment of marriage: Similar to nullity, annulment is possible under certain special circumstances—such as when the marriage was entered into by fraudulent deception or under duress. However, the time limit to invoke such grounds is limited (usually six months from learning of the reason).
- Dissolution of a registered partnership: Although not a “marriage” in the classical sense, it is worth mentioning for completeness: registered partnerships in Austria are also dissolved by the court—analogous to divorce, but referred to as the “dissolution” of the partnership. The procedures are very similar.
These special forms play a minor role in everyday practice. The overwhelming majority of marriage dissolutions occur through the regular divorce process—either by mutual consent or contested.
Where and How Do I File for Divorce?
Competent Court
The divorce petition (whether mutual consent or contested) must be filed with the court. The competent court is generally the district court in whose jurisdiction the spouses had their last shared habitual residence. If neither spouse still lives there, the district court of the current residence of one spouse may also be competent. The court search by the Federal Ministry of Justice can help you find the correct district court.
Important: In Austria, there is no “divorce at the civil registry office” – every divorce requires a judicial proceeding. Therefore, the first step is always to go to the district court.
Filing for Divorce in Vienna
Below is a list of district courts in Vienna. For a more detailed listing of all district courts in Vienna with additional information such as current office hours, see here: District Courts Vienna
| Court | Districts | Address | Phone |
|---|---|---|---|
| Döbling | 18th, 19th District | Obersteinergasse 20–22 | 01-360 03 |
| Donaustadt | 22nd District | Dr.-Adolf-Schärf-Platz 3 | 01-201 35 0 |
| Favoriten | 10th District | Angeligasse 35 | 01-601 48 |
| Floridsdorf | 21st District | Gerichtsgasse 6 | 01-277 70 |
| Fünfhaus | 14th, 15th District | Gasgasse 1–7 | 01-891 43 |
| Hernals | 16th, 17th District | Kalvarienberggasse 31 | 01-404 25 |
| Hietzing | 13th District | Dommayergasse 12 | 01-877 26 21 |
| Innere Stadt | 1st, 3rd–6th, 11th District | Marxergasse 1A (City Tower Vienna) | 01-515 28 |
| Josefstadt | 7th–9th District | Florianigasse 8 | 01-401 77-0 |
| Leopoldstadt | 2nd, 20th District | Taborstraße 90–92 | 01-245 27 |
| Liesing | 23rd District | Haeckelstraße 8 | 01-869 76 47 |
| Meidling | 12th District | Schönbrunner Straße 222–228/3/5th Floor (Entrance Ruckergasse 1) | 01-815 80 20 |
Form and Content of the Petition
A divorce can be filed either in writing or, during certain office hours, verbally recorded. For mutual consent divorce, there is an official form (“Application for Mutual Consent Divorce”) that can be used. This form collects the personal data of both spouses, the date of marriage, and the declaration that the marital relationship is irretrievably broken.
In a contested divorce, instead of a joint application, one spouse files a divorce lawsuit. This complaint must include, in addition to the parties’ data, the divorce petition (the request to dissolve the marriage) and a justification: the ground for divorce must be specified precisely and supported by evidence where possible (e.g., witnesses, documents). In any case, the petition must clearly show that the petitioner has the “firm intention to divorce.” If required content is missing or the petition is incomplete, the court may request amendments.
Once the divorce lawsuit or petition is received, the court initiates the proceedings. For a joint petition in a mutual consent divorce, the court schedules a hearing. For a contested divorce, the court serves the complaint on the defendant spouse, who then has the opportunity to file a written response. The court then sets a hearing date for the case to be argued.
Necessary Documents
When filing for divorce, you should already have important documents ready to attach to the petition. In Austria, the following documents are typically required:
- Marriage certificate: Proof of marriage (obtainable from the registry office).
- Birth certificates of joint children: If there are minor children in common.
- Registration certificate and proof of citizenship: From both spouses, to demonstrate residence and nationality.
- Official photo IDs: Copies of passport or identity card for both spouses for identification.
- Proof of assets: Documents for division assets, e.g. land register extract for real estate, rental agreement for the marital home, vehicle registration for a car, bank or securities account statements for savings. These documents help quantify the assets to be divided.
- Divorce settlement agreement: For a mutual consent divorce, a written agreement on all consequences of the divorce (maintenance, custody, division of assets, etc.), if already drafted. This can be attached to the petition or recorded at the court hearing at the latest.
- Parental counseling certificate: If the spouses have minor children, they must complete counseling on the needs of children in separation situations before the divorce is finalized. A confirmation of this (§ 95 Abs. 1a AußStrG) should be presented to the court.
If individual documents are missing at the time of filing, the divorce proceedings will still commence. The court will typically request any missing documents later. However, it is advisable to file everything completely to avoid delays. Upon request, the court can also obtain the registration certificate directly from the Central Register of Residents if you do not wish to provide it yourself.
Duration of Divorce Proceedings
One of the most common questions among those affected is: “How long does a divorce take?” The duration of divorce proceedings in Austria can vary greatly, depending on whether the divorce is mutual consent or contested and on the individual circumstances. Here are some guidelines:
Mutual Consent Divorce – Duration
A mutual consent divorce is usually the fastest. If all documents are submitted in full and both partners have resolved all issues, the waiting time mainly depends on the court. In many cases, the hearing date for the divorce is set within about 2 to 3 months after filing. Some courts are faster, others slower due to workload – 4 to 6 months of waiting time are not uncommon.
The hearing itself is usually short (often under 30 minutes). If everything is in order, the divorce is granted. This is followed by a 14-day period for appeals. If no appeals are filed, the divorce becomes final immediately after this period. If the appeal period passes without challenge, the divorce is finalized after two weeks.
Overall, a mutual consent divorce can be completed in just a few months – in favorable cases about 3 months, in other cases up to half a year. In exceptional cases (court backlog, errors in the petition, requests for additional documents) it can take longer, but under normal conditions mutual consent divorces are relatively quick.
Contested Divorce – Duration
Contested divorces take significantly longer. The court must clarify the facts, hear witnesses, possibly obtain expert reports, and legally decide on fault and divorce requirements.
The duration depends on many factors:
- How complex are the points of dispute?
- How many hearing days are needed?
- How cooperative or adversarial are the parties?
In simple contested cases (e.g., no children, little property) proceedings can be completed in 6–12 months. More often, contested divorces can span 1 to 2 years. In complicated or acrimonious disputes it can take even longer – several years are not uncommon, especially if a first-instance decision is appealed to the Higher Regional Court.
Every additional expert report, postponement due to illness, or settlement negotiations can extend the process. In extreme cases, if appeals (e.g., appeal, review) are filed, a divorce proceeding can last over 3 years or more.
Factors That Can Delay the Proceedings
There are a number of factors that can negatively affect the duration of divorce proceedings:
- Scope of disputes: If numerous divorce consequences (maintenance, custody, division of assets, etc.) need to be settled, the process takes longer. In contested cases, these issues are often handled in separate proceedings after the divorce, which consumes a lot of time overall.
- Willingness to cooperate: When both parties work together constructively, much can be resolved more quickly. If one partner refuses to cooperate (e.g., delays handing over documents, fails to appear at hearings), this leads to delays.
- Court scheduling: The court’s workload matters. Heavily frequented courts (e.g., in Vienna) may have longer waits for hearing dates than smaller courts.
- Evidence gathering: If witnesses must be summoned or experts engaged (for example, for reports on parenting ability or asset valuation), this significantly extends the process, since such expert reports can take months.
- Appeals: If one spouse files an appeal against the first-instance decision, the case moves to the next level. An appeal procedure at the Higher Regional Court also takes time. Further challenges to the Supreme Court (if permitted) extend the total duration even more.
In general: Mutual consent greatly speeds up the divorce process. The more issues in dispute and the greater the disagreement, the longer it will take. Always plan for a certain timeframe when going through a divorce and make financial and organizational preparations during this transitional period (e.g., interim maintenance arrangements, housing situation, etc.).
What Must Be Arranged Before Filing?
Before taking action and filing for divorce, you should address some essential points. Many of these topics will later be the subject of agreements or court decisions – but ideally you agree on them in advance to simplify the process. Especially in a mutual consent divorce, the following matters must be settled (otherwise the court will not grant the divorce):
- Children and custody: If you have children together, you must determine who they will primarily live with and how custody will be arranged. If joint custody remains in place, clear arrangements should be made regarding the primary residence and the other parent’s visitation rights. If one parent is granted sole custody, you must define the visitation schedule for the other parent. Important: Before a mutual consent divorce, parents are legally required to attend an informational counseling session on children and divorce. Make sure you complete this parental counseling and obtain the certificate before filing – without proof of this counseling, the court will not issue the divorce decree.
- Maintenance: This concerns both child maintenance (alimony) and spousal maintenance after divorce. For children, you must specify which parent pays how much and from when. The amount is usually based on percentages of the payer’s income and the child’s age – there are guideline tables (e.g., Austrian percentage rates). In a mutual consent divorce, it must at least be noted that a child maintenance arrangement has been made (e.g., “Father pays €X per child per month”). For spousal maintenance, decide whether either ex-partner will receive maintenance from the other. Often both waive post-marital maintenance in a mutual consent divorce – this should be explicitly stated. If maintenance is agreed, the amount or calculation basis should be recorded.
- Division of assets: A very important point is dividing marital household assets and savings. This includes all assets acquired together during the marriage – e.g., household furnishings, car, savings, possibly a condominium or family home. You must agree who receives what. For real estate, one party can assume the other’s share (often in exchange for compensation), or the property can be sold and proceeds split. Debts incurred during the marriage (e.g., mortgage) also count and must be addressed. The agreed division should be as detailed as possible (e.g., “Wife receives the X-brand car; husband assumes Loan No. Y and receives Savings Account Z in return”).
Note that certain items are exempt from division, such as clothing, personal gifts, or assets owned before or inherited into the marriage. You can still voluntarily agree on their division. If no agreement is reached, division would require a separate proceeding after divorce – avoid this if possible, as it adds extra effort. Therefore, clarify asset issues in advance as far as possible.
- Living arrangements: Also arrange before filing who will remain in the marital home until and immediately after the divorce, or whether someone moves out. Often one partner has already left. If living arrangements are tense, you can make temporary agreements (e.g., “Husband remains in the rented apartment until three months after divorce, then moves out; wife waives rental contribution from him until then”). Such arrangements can be part of the divorce settlement.
Tip: You can summarize all these points in a written divorce settlement agreement for clarity and enforceability. For example, create a checklist and work through it point by point: children, maintenance, assets, debts, pension (pension equalization in Austria is not as formalized as in Germany, but pension claims remain separate – no special division is required). Remember to adjust insurances, joint accounts, car registration, etc. The more you have settled before filing, the smoother the process will be.
In the case of a contested divorce, the above points do not have to be settled before filing – they are often the very subject of dispute. However, you can proactively arrange certain things, such as a temporary contact plan for the children so they are not caught in the parents’ conflict.
Child maintenance payments should ideally begin immediately after separation – if necessary, you can file an interim maintenance order. And regarding asset division: if you cannot agree, it can be requested in court up to one year after the divorce becomes final. However, it is often less stressful and less costly to reach an agreement beforehand rather than pursue another court case.
Filing a Mutual Consent Divorce: Procedure & Advantages
- Joint Divorce Petition: The spouses jointly (or through their lawyers) prepare a divorce petition and file it with the competent district court. Alternatively, they can appear together on the court’s office day and orally record their intention to divorce. The petition states that the marriage is irretrievably broken and that no marital cohabitation has existed for at least 6 months. Both sign the petition (for written submission).
- Divorce Settlement Agreement: A central component is the agreement on the consequences of the divorce. The spouses must conclude an agreement covering all consequences of the divorce – in particular the division of marital household assets and savings, the distribution of debts, post-marital maintenance (if applicable), as well as custody, child support and visitation rights regarding any joint children. This settlement agreement can be attached to the joint petition in writing or recorded orally at the court hearing at the latest. It is important that every point is covered, as the court may only grant the petition if a comprehensive agreement exists.
- Judicial Confirmation: After filing, the court schedules a hearing for the divorce. At this hearing, both spouses (and, if applicable, their lawyers) appear in person. The court verifies once more that the conditions are met – in particular, that the marriage is irretrievably broken and that the settlement agreement covers all necessary points – and hears the parties. If no obstacles are apparent, the court acknowledges the spouses’ agreement and issues the divorce by decree. Often the decree is announced orally and delivered in writing shortly thereafter. If both waive appeals, the decree becomes final immediately; otherwise, after 14 days.
Advantages of a Mutual Consent Divorce:
- Speed: Mutual consent divorces are usually completed within a few months, as elaborate evidence gathering is omitted and often only one hearing is necessary.
- Lower Costs: Since both partners share the court fee and legal costs are often minimal (sometimes none if no lawyer is needed), this type of divorce is more cost-effective. Agreements also avoid expensive follow-on proceedings (e.g., separate processes for maintenance or assets).
- Less Stress: Mutual consent proceedings are far less stressful. Emotional strain is lower, since no adversarial battle takes place. It is also gentler for any children, as parental conflict is reduced.
- Control: Spouses can arrange the consequences according to their wishes and retain decision-making power. In contested divorces, the court determines maintenance, custody, etc., which can be unsatisfactory for both parties.
Of course, this option assumes both partners are willing to cooperate. If agreement on certain points cannot be reached, mediation can help achieve a joint solution before proceeding with a contested divorce.
Filing a Contested Divorce: Procedure & Risks
- Filing the divorce lawsuit: One spouse (the plaintiff) files a divorce lawsuit with the competent district court, either through a lawyer or on their own. The complaint must state the grounds for divorce (e.g., a detailed description of matrimonial misconduct) and, where possible, be supported by evidence. Possible grounds include fault-based reasons (classic examples: adultery, violence, etc.) or other statutory grounds. Important: The plaintiff should specify all relevant events and circumstances, as the court can only decide on the grounds presented. After the complaint is received, the court serves it on the other spouse (the defendant).
- Court proceedings with a reconciliation attempt: The defendant may submit a response within the deadline set by the court, addressing the allegations. At the first hearing (oral proceedings), the judge usually attempts to mediate or encourage an amicable settlement. Both parties are often informed about counseling options (e.g., marriage counseling, mediation). If an agreement is reached at this stage and a joint petition is filed, the contested proceedings can be suspended and converted into a mutual consent divorce. If no agreement is reached, the case proceeds to evidence gathering: witnesses are heard, documents submitted, and experts appointed if necessary, so that the court can determine whether the alleged grounds for divorce are proven.
- Judgment and declaration of fault: At the end of the process, the court issues the divorce decree. The court decides whether to dissolve the marriage or dismiss the lawsuit. If fault is found, the decree will also declare which spouse is responsible (solely or predominantly) for the breakdown of the marriage. This declaration of fault can significantly affect post-marital maintenance claims – for example, a spouse found solely at fault is typically obligated to pay maintenance and is not entitled to it. If the lawsuit is dismissed (e.g., because the alleged grounds could not be proven), the marriage remains intact. An appeal can be filed within 4 weeks of the decree; if no appeal is lodged, the decree becomes final after this period.
Risks and Disadvantages of Contested Divorce:
- Longer duration: Contested proceedings often take much longer (commonly one to two years or more) due to extensive evidence gathering and possible appeals.
- Higher costs: Court proceedings incur higher legal fees on both sides. Costs increase with longer proceedings, expert witnesses, and multiple court appearances. Court fees may also rise if several hearings are required. In the worst case, the losing party may have to bear part of the other side’s costs.
- Emotional strain: An adversarial battle in court is stressful for everyone involved. Intimate details of the marriage are discussed in open hearings, which can worsen personal situations and particularly distress any children who witness the conflict.
- Uncertain outcome: Unlike a mutual consent divorce, the outcome is not guaranteed. There is a risk that the lawsuit will be dismissed, leaving you still married. Even if granted, a declaration of fault can be disadvantageous (e.g., affecting maintenance). Decision-making power lies with the judge, and you relinquish control over important aspects of your life.
Nevertheless, a contested divorce is sometimes the only option – for instance, if one partner categorically refuses or intolerable conditions (abuse, serious offenses) exist. In such cases, prepare thoroughly: secure all relevant evidence, inform witnesses, and consult a specialized divorce lawyer to improve your chances. During the proceedings, it is crucial to meet deadlines (e.g., for appeals) and consider any settlement proposals from the court if they serve your interests.
What Happens After Filing?
Once you have submitted the divorce petition, the question arises: What happens after filing? The answer again depends on whether it is a mutual consent or contested proceeding. Broadly, the period after submission can be divided into the following phases:
- Court-internal preparation: As soon as your petition arrives at the district court, it is registered and assigned to a judge. In a mutual consent divorce, the court reviews the documents for completeness. If necessary, the judge will request missing documents or ask for clarifications (e.g., if the settlement agreement is unclear). In a contested divorce, the complaint is served and the files are prepared for the first hearing.
- Notice of hearing: Once everything is in order, the parties receive a notice (a written summons) to the court hearing. This notice contains the date, time, and courtroom, and sometimes instructions on which documents to bring. In a mutual consent divorce, both spouses receive the same notice, since they appear together. In a contested divorce, plaintiff and defendant receive separate notices (often sent simultaneously); if one party lives abroad, service may take longer.
- Interim period before the hearing: This waiting time can be used productively. For example, you might still resolve disputed points bilaterally: some couples manage to settle differences even after filing—perhaps one spouse makes an offer that the other accepts. It is entirely possible that a case initially filed as contested becomes mutual consent. In such a case, inform the court in time, preferably in writing, that you wish to convert to a mutual consent divorce—the court can then adjust the proceedings accordingly. Conversely, if you filed by mutual consent but a conflict arises before the hearing, you can withdraw or amend the petition. Up until the decree becomes final, either spouse in a mutual consent case can withdraw the petition. The divorce is then considered not filed. This flexibility exists.
- Court hearing and decision: At the divorce hearing itself, the procedure described in previous sections takes place—depending on the type of proceeding. After the hearing, there is either an immediate decision (decree/judgment) or another date is set (e.g., if the hearing is adjourned). Once a decree or judgment is issued, this does not mean you are instantly “divorced”—first, the appeal period runs.
- Finality and divorce decree: If no appeal is filed or both waive their rights to appeal, the decision becomes final. This means the decree is binding. From that moment on, the marriage is officially dissolved. You will receive the written divorce decree or judgment, if it was not already handed down at the hearing. With this document, you can update your marital status at the registry office.
- Post-divorce tasks: After the divorce, you should take care of several practical matters: notifying your employer (for tax class or family allowance changes), possibly reverting to your former surname (processed at the registry office), updating insurance policies, bank accounts, wills, etc. For joint children, inform schools or childcare providers of any changes (e.g., address updates or pickup authorizations).
- Follow-up proceedings: In contested cases, the next phase may begin after the divorce: asset division (if no agreement was reached, action must be taken within one year) and post-divorce maintenance (if contested, it can also be litigated). These proceedings run separately, usually before the same court but under new file numbers. This means that while the divorce itself is complete, some financial issues may remain open. Try to settle these matters in advance so you can draw a real line under the process once the decree is final.
In summary: After filing, nothing visible happens for a while—the court schedules the hearing. During this time, continue preparing but also be patient. From the hearing onward, the marriage ends relatively quickly in a mutual consent case, or evidence gathering may prolong the process in a contested case.
Important: During the proceedings, avoid unilateral actions that could be legally disadvantageous: for example, refrain from large financial transfers or debts that could be construed as concealment, and do not make independent decisions regarding the children without agreement. When in doubt, seek advice on what you can do and what you should avoid.
Checklist: Filing for Divorce Correctly in Austria
Filing for divorce requires some preparation. Use this step-by-step checklist to keep track:
- Get informed and seek advice: Gain an initial overview (e.g., using this article). Clarify the basics: Is a mutual consent divorce possible, or will it likely be contested? If in doubt, consult legal advice early (lawyer or counseling center).
- Check prerequisites: Determine whether the legal requirements are met. For mutual consent divorce: have you been separated for at least 6 months and are both parties willing to divorce? For contested divorce: is there a ground for divorce you can prove (e.g., matrimonial misconduct)? Are waiting periods applicable (e.g., 3 years’ separation for breakdown without fault)? Also ensure no reconciliation attempt is ongoing that could call the breakdown into question.
- Prepare divorce consequences: Consider maintenance, custody, child support, division of assets, debt allocation, marital home, etc. Try to reach agreements with your partner and record them in writing. Ideally draft a divorce settlement agreement in advance.
- Complete parental counseling (if children): If you have children under 14, you must attend a parental counseling session on children’s needs in separation before a mutual consent divorce. Find an approved course or counselor early (lists available online, e.g., via the Federal Chancellery). Obtain written confirmation—this must be presented to the court.
- Gather documents: Compile all required paperwork: marriage certificate, children’s birth certificates, registration certificates, proof of citizenship, ID copies, proof of assets and debts, etc. This helps avoid delays from court requests.
- Fill out form or draft complaint: Download and complete the mutual consent divorce form (available from the Ministry of Justice) with your partner, if applicable. For a contested divorce, you or your lawyer should draft a divorce complaint with all necessary details. Use templates as guidance but adapt them to your case.
- Consider a lawyer (optional): Decide whether to engage an attorney. At the latest in complex or contested cases, legal support is advisable. A lawyer can review your petition draft or legally formalize the settlement agreement. Note this incurs costs—get estimates or use an initial consultation.
- File the divorce petition: Submit the petition to the competent district court. You can deliver it in person (with ID check at the court counter) or send it by mail. Ensure correct form (both signatures for a joint petition or the plaintiff’s signature alone). Alternatively, appear on the court’s office day and record the divorce orally—bring all documents.
- Pay court fee / apply for legal aid: The court fee becomes due upon filing (currently a total 768 € for a mutual consent divorce). Ask at filing how to pay (often via payment slip or bank transfer within a short deadline). If you need legal aid, apply at the same time to be exempted from fees.
- Wait for the court date: After filing, wait for the court to review the petition and schedule a hearing if everything is complete. Watch your mail for the summons (sent by registered mail). In the meantime, finalize any preparations (e.g., list questions for the hearing).
By following these steps, you will have well prepared your divorce proceedings. Pay special attention to document completeness and legal deadlines. For example, a fault-based divorce complaint must be filed within 6 months of discovering the misconduct, or the incident is deemed waived.
Also keep in mind the one-year deadline for asset division after the divorce becomes final, if it was not settled as part of the divorce. Thorough preparation increases your chances of a quick and smooth process.
Common Mistakes When Filing for Divorce
Despite thorough preparation, mistakes can happen. Here are some common errors you should avoid when filing for divorce:
- Incomplete or incorrect petition: A classic slip is missing or incorrect information in the divorce petition—e.g., names misspelled, birth dates swapped, or the case number of a prior separation agreement entered wrongly. Such errors lead to follow-up questions and delays. Therefore: fill everything out carefully and have it proofread.
- Wrong court chosen: Filing at the wrong court wastes time. For example, it’s pointless to file in your parents’ district if you never lived there as a couple. Verify jurisdiction in advance so the petition lands in the right place immediately.
- Missing essential documents: It is very common to forget to attach, for instance, the marriage certificate or proof of parental counseling. The court will then request them, often costing weeks. Before submission, check off each required enclosure against your own checklist.
- Parental counseling not completed: Especially when children are involved, you must not forget the mandatory counseling. Some couples file without the certificate – the process cannot be completed until it is provided. So make sure to do this beforehand.
- No agreement on children/maintenance in mutual consent cases: Sometimes couples file as “mutual consent” even though key points remain unresolved (e.g., who will primarily care for the children). This can derail the hearing — at worst the divorce is postponed or denied for lack of agreement. Therefore: don’t file on a hunch, but ensure a solid agreement or at least present a clear plan.
- Rushed contested lawsuit: In anger or emotion, one might file a contested suit hastily, perhaps even without a lawyer. Afterwards you may find yourself unprepared for counterclaims or allegations. Procedural mistakes can be hard to correct. Recommendation: even if difficult, stay calm and plan a contested divorce strategically, ideally with legal advice, rather than acting impulsively.
- Ambushing your ex-spouse: Serving a divorce petition “cold” without any prior notice can harden positions. Surprise tactics may seem tempting but are rarely helpful in divorce. Better: signal your intentions in advance and give the other party a chance to respond or reach an amicable settlement. This avoids an unnecessarily hostile start to the process.
- Overlooking procedural deadlines: After filing, stay vigilant: deadlines for responding to the complaint (in contested cases) or for appeals must not be missed. Payment deadlines for fees are also critical — failure to pay risks rejection of your filing. Always open court mail promptly and act, and inform your lawyer if you have one.
- Unrealistic expectations: It’s a mistake to enter the process with false notions — for example, expecting to “punish” your spouse or get every demand 100% granted. This often leads to frustration. It’s better to approach the matter realistically and be willing to compromise from the start.
By knowing these pitfalls, you can take targeted measures to avoid them. Use checklists (like the one above) and seek advice to navigate typical stumbling blocks. This increases your chances of a swift and clean divorce process.
When Is Legal Assistance Advisable?
Requirement or Recommendation?
As mentioned, there is no mandatory attorney requirement for divorces before the district court in Austria. Legally, you can handle both mutual consent and contested divorces without a lawyer. Especially mutual consent divorces with straightforward circumstances can sometimes be managed independently.
However, a divorce often carries significant legal and financial consequences. Errors in the divorce settlement agreement or in asserting claims can have long-term adverse effects. Particularly where there are children or issues of maintenance and asset division, professional legal support can be very valuable.
Legal assistance is especially recommended in the following situations:
- In contested divorces: As soon as it is clear that the proceedings will be contested (e.g., your spouse does not agree or serious allegations are involved), you should engage a lawyer. An experienced divorce attorney knows the pitfalls of litigation, the necessary evidence, and how to formulate your claims. Without a lawyer, you risk failing to enforce important rights or making procedural mistakes. In any appeal to the Higher Regional Court, legal representation is mandatory.
- Where significant assets are at stake: If substantial assets—such as real estate, business shares, or investment portfolios—are involved, legal counsel is advisable. Dividing high-value assets can be complex (e.g., valuation, offset payments). A lawyer ensures you are treated fairly and do not lose claims. The same applies to complex debt arrangements.
- In complex maintenance matters: For example, if one partner was unable to work or if children have special needs. Maintenance claims may arise (e.g., care maintenance for the caregiving parent or maintenance for spousal income loss). Calculating these claims is demanding. A lawyer can determine and enforce the correct amount. For self-employed maintenance payers, legal advice is also wise, as income can be harder to verify.
- When children are heavily affected: You can arrange custody and visitation agreements yourself, but if a dispute over custody or visitation is likely, you should involve a lawyer. They can file interim measures (e.g., provisional visitation orders) and represent you in custody proceedings. Professional handling protects children from being caught in parental conflict.
- In cases of violence or coercion: If you are a victim of domestic violence or feel threatened, do not hesitate to seek legal assistance (and victim support). A lawyer can obtain protection orders (e.g., removal orders, restraining orders) and shield you from your partner. If your partner pressures you to sign unfair agreements, seek legal advice immediately.
- If your spouse has legal representation: If your spouse is represented by a lawyer, you should not proceed without one. Otherwise, you face an imbalance in expertise that could disadvantage you. A lawyer ensures you negotiate on an equal footing.
- For international aspects: If one spouse holds a different nationality or you live abroad, matters become more complex (jurisdiction, applicable law). Specialized knowledge of international family law is required. A lawyer can clarify whether Austrian law applies and where to file suit.
- To review agreements: Even in mutual consent divorces, it can be wise to have your negotiated settlement agreement reviewed by a lawyer or notary. This ensures the agreement is complete, balanced, and unlikely to be challenged later. A lawyer can also craft legally precise language to avoid misunderstandings.
In these situations, legal counsel is almost indispensable. Even in uncontested cases, a brief review by a lawyer can be beneficial: they can check your settlement agreement for completeness and point out any gaps or unusual provisions.
Choosing the Right Divorce Lawyer
When you decide to seek legal support, you should choose a lawyer who specializes in family law (divorce lawyer). Recommendations from friends or online reviews can provide initial guidance. Pay attention to the following criteria:
- Expertise: The lawyer should have extensive experience with divorce cases. Family law is complex, and specialists are most familiar with current legislation and court practice.
- Trust relationship: Divorce is a very personal matter. Choose someone you trust and with whom you feel your concerns will be well understood. An initial consultation can help determine if the chemistry is right.
- Cost transparency: Discuss expected fees early on. A good lawyer will explain which costs you may incur and whether they charge a flat fee or bill by the hour.
- Availability and commitment: In often emotionally taxing divorce proceedings, it is important that your legal counsel is reachable for questions and acts with dedication. You should feel that your lawyer actively and promptly represents your interests.
In summary: Not every divorce requires an attorney, but when there is disagreement, complex assets, or legal uncertainties, legal assistance is worth the investment. An experienced divorce lawyer can help you avoid costly mistakes or disadvantages and ensure you are well advised during this important life step.
FAQ: Filing for Divorce in Austria
Do I Have to Wait a Separation Period Before Divorce?
Unlike in some countries (e.g., the German “year of separation”), Austria does not require a fixed separation year. However, for a mutual consent divorce, the law requires that the marital cohabitation has been suspended for at least 6 months. In a contested divorce on fault-based grounds, there is no minimum separation period—you can theoretically file as soon as the ground arises, as long as you comply with the 6-month limitation for asserting fault. Only if neither party is at fault and one spouse refuses the divorce must you wait 3 years of separation (or 6 years in exceptional hardship cases).
Do I Need a Lawyer to File for Divorce?
No, there is no mandatory attorney requirement in Austria at the district court level. You can submit a joint petition or a divorce claim yourself. It is common for couples to handle mutual consent divorces without a lawyer. However, legal counsel can be very helpful—it can advise you, draft your petition correctly, and prevent mistakes. In contested cases, a lawyer is strongly recommended because the procedure is more complex. You will definitely need one if you appeal to a higher court. In short: it is possible to file without a lawyer, but depending on your situation it may be wise to engage one. If you cannot afford one, you can apply for legal aid and the court will appoint a lawyer for you free of charge.
Where Do I File for Divorce?
The competent court is the district court of the judicial district where you and your spouse last shared a habitual residence. For example, if you last lived together in Graz, a Graz district court is competent. If you no longer share a residence in Austria (for instance, you live separately in different locations), you may file at the district court of your (soon-to-be) spouse’s residence. If neither applies (e.g., you both live abroad but are Austrian citizens), there are exceptions—often the Innere Stadt Vienna District Court is competent. To be safe, call your nearest district court to confirm jurisdiction. Always address your petition directly to the court, not to the civil registry or municipal office.
How Much Does a Divorce Cost in Austria?
The pure court fees currently amount to approximately 768 € for a mutual consent divorce for both spouses. For a contested divorce, the fee is 410 €. If a settlement is reached, additional fees apply for the agreement; if it proceeds to judgment without settlement, the contested fee remains. On top of that come attorney’s fees, which can vary widely: a straightforward mutual consent divorce may cost a few thousand euros in total, while contested cases can run into several thousand euros per party.
If you qualify for legal aid, court fees are waived and a lawyer is provided, resulting in minimal out-of-pocket costs. You should also account for potential expert fees or child representation costs, if applicable. Overall, a mutual consent divorce is significantly cheaper than a contested one. And remember: the losing party in a contested case may have to bear the winner’s costs as well.
How Long Does a Divorce Take in Austria?
It depends on the type of divorce. A mutual consent divorce is often completed in about 3 to 6 months from filing to final decree. Some cases are faster if the court schedules quickly and both waive appeals. A contested divorce typically takes 1 to 2 years, often longer. With appeals or complex evidence gathering, it can exceed 3 years. As a rule of thumb: mutual consent is much quicker. Factors such as court workload and case complexity also matter, but you can roughly expect a few months versus a few years depending on agreement or dispute.
What If My Spouse Does Not Agree to the Divorce?
If your spouse refuses to agree, you can still file—a contested divorce is the route. In your claim, you must cite a statutory ground for divorce. Ideally, a fault-based ground (e.g., adultery, violence) allows divorce against the other’s will, if proven. If no misconduct exists, you must rely on irretrievable breakdown after prolonged separation: after 3 years of suspended cohabitation, the court can grant divorce without the other’s consent (except in 6-year hardship cases). It is important to live clearly separate lives (separate accounts, bedrooms, etc.) to demonstrate separation. It may help to continue discussions—some spouses eventually consent when they see the process is inevitable. So: consent is required for mutual consent divorce but not for divorce itself—it only makes it easier and faster.
When Am I Officially Divorced?
You are legally divorced as soon as the divorce decree or judgment is final. This means the statutory appeal period has expired without challenge, or appeals have been waived. In a mutual consent divorce, finality can occur on the hearing day if both waive appeals on record. Otherwise, you wait 14 days after decree delivery. In a contested divorce, the appeal period is 4 weeks from judgment delivery. Once final, your marriage is dissolved—you may remarry. The court automatically notifies the registry office (if Austrian). It is still wise to confirm with the registry and obtain a divorce entry on your marriage certificate. The Central Person Register is also updated. In short: you are officially divorced upon finality; before that—despite the hearing—the marriage remains legally in force.
Sources
- Legal Information System (RIS) of the Federal Government – statutory texts on Austrian divorce law, in particular the Marriage Act (EheG) §§ 49–55a (grounds for divorce and mutual consent divorce) and relevant provisions of the General Civil Code (ABGB) on maintenance and custody. Current consolidated versions available at: ris.bka.gv.at
- Austrian Federal Portal – oesterreich.gv.at: Official information of the Republic of Austria. Especially the pages “Mutual Consent Divorce” (as of April 1, 2025) and “Contested Divorce” with subpages on fault-based divorce (§49 EheG), dissolution of the marital household (§55 EheG), etc. (as of January 1, 2024). Includes details on requirements, procedures, documents, costs, and appeals for divorces.
- Parental counseling before mutual consent divorce
- Information brochures and guides (Federal Ministry of Justice) – e.g., “Divorce Guide” and fact sheets on custody and maintenance.
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