Family law

Marriage Law

What is the significance of marriage?

Marriage is a legally and socially recognized union between two people, aiming to establish a long-term and responsible life partnership. It includes cohabitation, mutual support, and fidelity. Since 2019, same-sex marriage has also been legal in Austria.

What is the procedure for getting married?

The path to marriage usually begins with an engagement – a mutual promise to marry in the near future. While this step can formalize the intent to marry, it does not yet legally require a marriage contract. The civil registry office will verify in a personal appointment whether all legal requirements are met, such as the capacity to marry or the absence of marriage prohibitions. If significant deficiencies are found, this could lead to the annulment of the marriage.

What does capacity to marry mean?

A person who is capable of marriage must be at least 18 years old and able to comprehend the implications of entering into a marriage. This is referred to as decision-making capacity. In general, this is assumed in adults. In exceptional cases, a court approval may be granted for individuals aged 16, provided certain conditions are met.

Under what circumstances is a marriage prohibited?

Current legislation recognizes only a few prohibitions. These include marriages between close relatives in a direct line, as well as between full and half-siblings. Additionally, bigamy is prohibited, as the law only allows one marriage at a time. An existing adoption can also prevent a marriage if the adoption has not been revoked.

When can a marriage be declared null and void or annulled?

If serious deficiencies such as lack of capacity to marry or an existing bigamous marriage are present, the marriage is considered null and void retroactively (ex tunc). In cases of defects in consent, such as a mistake, the marriage can only be annulled for the future (ex nunc). Whether an annulment is possible depends on whether one spouse would be unreasonably bound by the defect in the marriage.

How do spouses choose their family name?

Spouses can choose either the existing name of one partner or a double surname, which may include a maximum of two name components. If no decision is made, each spouse retains their previous surname. In the event of a divorce, it is possible to continue using the married name or revert to the previous family name.

What obligations arise from marriage?

Primarily, spouses must maintain a comprehensive life partnership, which includes cohabitation, fidelity, and mutual support (including assistance in the household and in cases of illness). Additionally, a respectful and fair relationship is essential.

How is financial support regulated in an ongoing marriage?

Each spouse contributes to the common financial needs according to their means. The principle of imputed income applies: a person who earns less than they are capable of will be treated as if they were utilizing their full potential. A mutually agreed division of gainful employment and household duties is possible. A failure to meet support obligations can be considered a marital offense in divorce proceedings.

In what form is financial support provided during marriage?

In principle, the entitled spouse can demand financial support in the form of monetary payments if a shared household exists and this is not unreasonable. Instead of cash payments, in-kind support is also possible if both spouses agree.

Is assistance in the spouse’s business required?

If it is reasonable given the circumstances and no other contractual agreements exist, there is an obligation to assist in the spouse’s business. Factors such as one’s own profession, childcare responsibilities, and personal abilities play a role. If assistance is provided, the assisting spouse is entitled to appropriate compensation, provided that this support actually increases earnings. Such an obligation to assist can be excluded at the time of marriage.

More information can be found here > Questions about marriage law

Child Law & Custody

What happens if there is no legal father?

If there is no paternity acknowledgment or marriage to the child’s mother, the legal representative must ensure that paternity is established—unless this is contrary to the child’s welfare or the mother refuses to disclose the father’s identity. Paternity can be determined either through court proceedings or a formal acknowledgment.

When can an adoption be approved?

An adoption is established through a written contract between the adopter and the adopted child and requires court approval. Suitable candidates include individuals, married couples, registered partners, or cohabiting partners.

The adopted child does not necessarily have to be a minor, but stricter requirements apply to adult adoptions.

Additionally, all affected persons, such as biological parents or spouses, must consent unless there are justified reasons against their consent.

Do biological parents have visitation rights after adoption?

No, biological parents do not have a legal right to contact the adopted child.

What responsibilities does custody of a child entail?

Custody includes the physical and emotional care (nurturing and upbringing), management of the child’s assets, and legal representation. The aim is to ensure the child’s welfare, which also involves considering the child’s wishes, provided this does not pose a risk. In significant matters such as religious upbringing or name changes, both custodial parents must agree. Particularly important decisions or transactions also require court approval.

What is the significance of custody concerning a child’s health and upbringing?

Custody focuses on protecting the child from physical and emotional harm and promoting an age-appropriate development. This includes medical care and the selection of appropriate education. Parents are expected to act in the best interests of the child and, where possible, consider the child’s opinion.

More information can be found here > Questions about child law and custody