Family Law

How is divorce regulated by Austrian law?

• Consensual divorce (die einvernehmliche Scheidung) is a simpler type of divorce, as both spouses have a desire to be legally separated.

•Divorce on the claim of one spouse due to the guilt of the partner (die strittige Scheidung) which is resolved by a court verdict.

Consensual divorce

Consensual divorce can only be applied:
• jointly by both spouses.
• Before filing the joint application, the spouse must live at least half a year apart.
• The two must continue to believe that their marriage is permanently and seriously disrupted.
• It is important to emphasize that “separated life” does not necessarily mean that you live in different addresses. Although they may still live in the same apartment, they need to have separate households. The proof would be, for example, the existence of separate bank accounts.

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Divorce on the lawsuit of one spouse due to the guilt of the partner

In this way, the marriage is divorced based on a lawsuit of one partner, who must state the reason in it. The reason may be the fault of the spouse or his leaving the marital union.

Where and how can spouses file for divorce?

The Municipal Court decides on the request for an amicable divorce. This means that there is no need for an oral hearing, which greatly speeds up the process. The decision on divorce is submitted to the former spouses.

Reasons for filing a lawsuit

A lawsuit can only be filed by a spouse who believes that the marital relationship is seriously and permanently disrupted due to the unacceptable behavior of the other spouse, and also that further cohabitation is impossible.

The most common reasons for a lawsuit are:

cheating
physical violence
constant insults and swearing
alcoholism
persistent unreasonable silence
malicious abandonment of the marital union
disinterest in the partner
lack of consideration
violation of the duty of financial support of a partner and joint children
hiding the amount of their income

The respondent may file a joint guilt (Mitverschuldensantrag) or a counterclaim (Widerklage).
If the court decides that the defendant is not guilty, and if the counterclaim has no basis, the lawsuit is rejected, and the divorce doesn’t follow through.

However, there is a possibility for the partners to agree on a consensual divorce during the process. In that case, the provisions for that type of divorce apply.

Divorce due to leaving the joint marital household

“Scheidung aufgrund der Auflösung der häuslichen Gemeinschaft” may be required if the spouse cannot be proven guilty of divorce and/or if he or she refuses to agree to it.

The precondition is that married life does not exist for at least three years. The plaintiff must prove that the marital union cannot be saved. The court, however, can still dismiss a lawsuit if it is proven that the marriage is not permanently damaged or that the divorce would hit the other spouse extremely hard.

Other reasons for divorce

mental illness
contagious severe disease
behavior based on mental disorders

The following documents must be filed when filing for divorce:

Heiratsurkunde (wedding certificate)
Staatsbürgerschaftsnachweis (proof of nationality)
Meldezettel (apartment registration)
Geburtsurkunde ehelicher Kinder (birth certificates of children born during marriage)

Where is the lawsuit filed?

The process begins with the filing of a lawsuit (Klageschrift) by the spouse in the Municipal Court that has jurisdiction over the last joint residential address. Since the reason for filing the lawsuit must be well explained, we suggest you seek good legal advice in this case. If the court accepts the lawsuit:

Oral hearing will be organized. A date will be scheduled for both partners to appear.
If conciliation is impossible or one of the spouses does not accept the divorce, the parties have the opportunity to state the reasons for that. And in that case, knowledge of legal possibilities is necessary.
Finally, a judgment (Scheidungsurteil) is delivered to ex-spouses, and to which they have the right to appeal (Berufung) within four weeks. If no one complains, the marriage is legally divorced after the expiration of that deadline.
At the end of the process, the court makes a decision, and after that, there is a period of 4 weeks to file complaints. If no one files an appeal, then the divorce is final.
Alimony claims for the other partner and children, custody claims, etc. must be resolved separately, in the next trial.

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