What happened?
The Austrian Supreme Court (OGH) had to address the question of whether and under what conditions a maintenance obligation towards a divorced spouse continues during a prison sentence, particularly when the imprisonment was intentionally caused by the person liable to pay maintenance.
In the present case, the marriage was dissolved in 2014 due to the predominant fault of the defendant. Based on a settlement, he had been obliged since 2018 to pay monthly spousal maintenance of EUR 710, although in practice he paid even higher amounts over several years. However, from June 2024 onwards, he ceased all payments entirely. The reason for this was that the defendant had shortly before been arrested for attempting to murder the claimant and has since been in custody. He was subsequently also convicted of attempted murder. According to the defendant’s own statements, one of his motives was to evade his maintenance obligation.
The claimant nevertheless continued to seek ongoing spousal maintenance from June 2024 onwards, arguing that the defendant was responsible for his lack of income and should therefore be assessed on the basis of his previous income. The defendant, on the other hand, argued that the maintenance claim was suspended due to his imprisonment. The lower courts largely agreed with this view and dismissed the claimant’s claim, but allowed an appeal to the Supreme Court, which the claimant subsequently pursued.
How did the Supreme Court decide?
The Supreme Court dismissed the claimant’s appeal and confirmed the decisions of the lower courts: the claimant’s maintenance claim is suspended from the beginning of the defendant’s imprisonment.
Primarily, the Supreme Court relied on the so-called “imputation theory” (Anspannungstheorie). According to this, a person liable to pay maintenance can generally be assessed on the basis of a higher income if they could achieve such income through reasonable effort. However, this always requires that such income is realistically attainable. A purely fictitious assessment of maintenance without a real and achievable earning opportunity is not permissible.
Against this background, the Supreme Court referred to its established case law, according to which no imputation takes place during imprisonment due to the lack of opportunity to participate in the labour market. This applies even if the imprisonment results from culpable conduct of the person liable to pay maintenance—even if such conduct is aimed at evading the maintenance obligation or is directed against the maintenance recipient. Assessing maintenance based on previously earned income would, in such cases, lead to a legally incorrect result that is incompatible with maintenance law.
According to the Supreme Court, these principles apply not only to child maintenance but also to spousal maintenance. There is no objective reason to treat imputation differently in this context. Since the defendant cannot earn income due to his imprisonment and, according to the findings, does not possess any realisable assets, there is no basis for calculating maintenance. The claimant’s maintenance claim is therefore suspended from the time of imprisonment.
Overall, the Supreme Court thus confirms that a maintenance obligation generally ceases during imprisonment, even in cases of serious personal fault on the part of the obligor, as long as neither income nor realisable assets are available.
(Decision 4 Ob 138/25k of 28 January 2026)
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