What Happened?
The parties married in 1990, and their marriage was dissolved in 2018, with the husband being found predominantly at fault for the divorce. The marital cohabitation had ended in 2017. The wife had brought a property into the marriage, on which a residential house and a workshop building for a carpentry business were constructed during the marriage. The husband operated the carpentry business, while the wife handled administrative tasks and provided financial support through guarantees and loans.
In 2015, the parties signed a notarial deed containing both a divorce settlement agreement and a transfer contract. The husband transferred the carpentry business, including all assets and liabilities, to the wife. At the same time, both parties mutually waived any compensation payment for the marital home, and the marital assets were divided by mutual agreement. However, after the divorce, the husband claimed a compensation payment of EUR 362,500 for the marital home and marital savings pursuant to §§ 81 et seq. EheG (Austrian Marriage Act). The respondent argued that the marital home was excluded from the division process due to the prior agreement. Additionally, she asserted counterclaims totaling EUR 556,056.45.
The court of first instance awarded the husband a compensation payment of EUR 110,383 but rejected his additional claims. The appellate court partially overturned this decision and remanded the case to the court of first instance, citing a lack of essential findings regarding savings accounts, their origins, and the distribution of marital assets.
How Did the Supreme Court Rule?
The Austrian Supreme Court (OGH) confirmed that the legal assignment of the marital home to the wife, based on the prior agreement, is legally binding and not subject to judicial review. However, the waiver of a compensation payment for the marital home is subject to an equity review under § 97(2) EheG. The OGH clarified that a prior agreement concerning a marital home acquired during the marriage can be reviewed in terms of compensation payments if it results in grossly unfair disadvantage to the claimant.
The OGH ruled that the legal assignment of the marital home is “immune to correction.” However, a waiver of a compensation payment that would significantly reduce the claimant’s rightful share of assets is subject to judicial review. This review aims to ensure that the parties’ contractual autonomy does not lead to an intolerable disadvantage for one spouse.
The OGH emphasized that assessing the fairness of the agreement requires a comparison (“control or parallel calculation”) of the hypothetical financial situation without the agreement and the actual financial situation after the agreement. In accordance with § 97(4) EheG, this assessment must consider factors such as the structure of marital life, the duration of the marriage, and the circumstances of the specific case. The husband’s permanent inability to work due to a severe lung disease was highlighted as a relevant factor in the fairness review.
The case was remanded to the lower court to make additional findings regarding the financial situation and savings accounts. In particular, the court must determine whether the waiver of the compensation payment for the marital home results in a gross disadvantage to the husband and to what extent an adjustment of the divorce settlement agreement is necessary. The OGH stressed that judicial correction should only go as far as necessary to eliminate the intolerable disadvantage, without undermining the fundamental contractual autonomy of the parties.
Conclusion
The OGH concluded that a prior agreement on the legal assignment of the marital home generally remains valid in division proceedings and is not subject to judicial correction. However, if such an agreement leads to an unfair and intolerable reduction of the claimant’s rightful share of assets, judicial adjustments may be made on a case-by-case basis to mitigate this disadvantage. The final decision on whether a compensation payment is warranted and its amount remains with the lower court.
(Decision 1 Ob 95/24p of October 24, 2024)
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