Divorcing in Austria

1. How can we divorce in Austria and where?

Divorce by consent
In Austria, individuals can apply for a divorce by mutual agreement in court, if they have been separated for at least half a year (they do not have to live apart) and consider their marriage to be irremediably disrupted.
A consensual divorce requires that the spouse agrees on the divorce and its consequences. A divorce agreement has to be set up.
The district court, in whose district the spouse has or has had the last common habitual residence, is the competent authority for the application of a consensual divorce.

Disputed divorce
Austrian law recognises three types of (disputed) divorce: fault divorce, divorce following separation for at least three years, divorce for other reasons. A spouse can file for divorce if the marital life has broken down so irretrievably as the result of a serious marital fault or dishonourable or immoral conduct on the part of the other that restoration of a relationship which is in essence equivalent to marriage cannot be expected.

If the couple has been living apart for three years, either spouse may file a petition for divorce on the reasons that the marriage has broken down irretrievably. A spouse can file a divorce suit for other reasons, if either spouse is mentally ill or suffers from a highly infectious or contagious disease or a disease which causes revulsion, no fault of the other spouse is required. In this case the restoration of the relationship cannot be expected.

2. What are the most common reasons that spouses may invoke?

The main reason for divorce is irretrievable breakdown of the marriage. The breakdown may have been caused by a serious marital fault on the part of one partner, especially where one spouse has been unfaithful or has been physically violent towards, or inflicted serious emotional suffering on the other.
In all such cases, the spouse petitioning for divorce must prove the asserted reasons for divorce. However, if the spouses have been living apart for three years, marital fault need not be asserted or established.

3. How long does it take to divorce in Austria?

In case of a consensual divorce by mutual agreement, the procedure could last from 2 to 4 weeks, a divorce lawsuit will last presumably somewhere between 1 to 3 years.

4. What types of evidence can be used when divorcing?

The types of evidence that can be used when divorcing are hearings of the parties and of witnesses, any kind of documents, reports prepared by private detectives, social worker reports, psychological assessments, transcripts of audio or video recordings.

5. What other family life aspects are settled once with the divorce?

(Legal consequences of a divorce)
Name
As a rule, both spouses retain the surname they used while they were married. If either spouse adopted the other spouse’s surname on marriage, they may go back to using their previous name.

Property of the spouses
If the spouses have not reached agreement on their property, either of them may ask the court to divide certain property belonging to both spouses. What are known as “matrimonial assets” and “matrimonial savings” will be divided between them. ‘
The court must distribute the assets equitably, with due regard for all relevant circumstances, paying particular attention to the importance and size of each spouse’s contribution towards the acquisition of the matrimonial assets and the accumulation of the matrimonial savings, and to the welfare of the children.

Children of the spouses
In the event of divorce, both spouses usually retain joint parental responsibility of minor children. However, if the parents wish to retain full joint parental responsibility, as they had in marriage, they must file an agreement on the child’s primary place of residence with the court within a reasonable time limit. The parents may also enter into an agreement in court  under which one parent has sole parental responsibility or one parent’s parental responsibility is limited to specific matters.
Since the 2013 Act Amending the Act on Children and Names (Kindschaftsrechts-Änderungsgesetz), the court may award the parents joint parental responsibility against the wishes of one or both parents if it considers that joint parental responsibility is in the child’s best interests. The parents must then agree which parent the child will live with. If joint parental responsibility is not in the child’s best interests, the court must decide which parent is to be awarded sole parental responsibility.
Therefore there have to be regulations regarding the primary place of residence of the child, the right of the other spouse to keep in touch with his/her child, the obligation of the other spouse to pay child support.

Maintenance to the other spouse
The spouse who was solely or predominantly to blame must pay the other spouse sufficient maintenance to maintain their lifestyle, if that spouse has insufficient income from assets or from work which they can reasonably be expected to do in the circumstances.

If both spouses are to blame for the divorce, but neither is more to blame than the other, the spouse unable to maintain himself or herself may be awarded a contribution towards their maintenance if that is equitable based on the needs, assets and earnings of the other spouse. Any such compulsory obligation may be subject to a time limit. In the event of divorce by consent, the spouses can freely agree whether one should pay the other maintenance or whether they both waive any maintenance claims.

6. Is my presence necessary when divorcing?

Spouses are free to be represented by a lawyer when divorcing at court and do not have to
appear in person.

7. What kind of temporary measures concerning children can be ordered during divorce proceedings?

During a divorce case, the court may order temporary measures regarding the children’s residence, the right of the spouse to keep in touch with his/her children, the obligation of one of the spouse to pay child or spousal support or spousal support.

8. How can a parent living abroad keep in touch with his child?

The Hague Child Protection Convention (“Haager Kinderschutzübereinkommen”), which more than forty states have implemented, is a Convention which specifically deals with measures to protect the child (Article 1 (1) (a) KSÜ).
These measures includes custody, including the care of the person, in particular the right of personal access.
The Convention therefore assumes a broad understanding of the term “right to personal access”. The purpose of the regulation of personal communication between the child and the parent who is not entitled to custody is to promote the development of the child through personal contact with this parent. All possibilities of modern communication (phone-, video calls or fax) serve this purpose. Such opportunities will be all accessible, as otherwise the maintenance of the necessary personal contact, would be for the reason of the large distance impeded.

9. In case a parent lives in another EU State, is that an obstacle for joint custody?

According to § 162 Abs. 2 ABGB parents can agree or the court determines which parent, who is entitled to custody, should primarily look after the child in his or her household, so that this parent has the sole right to determine the place of residence of the child.
Therefore the predominantly caring parent is able to go to any country on earth, provided that this country per se would pose no danger to children, without asking the other parent. The other parent (so the judicature) is only to inform.

10. How can a divorce resolution issued in Austria be acknowledged in another EU State?

A divorce sentence from a Member State is acknowledged by any other Member State. Once the divorce resolution is final, the parties may request the issuance of an European form that can be used in any EU State and that acknowledges the dissolution of the marriage in Austria.


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