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FAMILY LAW IN AUSTRIA.

Updated: Aug 16

Introduction


Sources of family law


Austria has codified system of law. The Civil Code (Oberster Gerichtshof) lays down the general provisions of the law relating to family relationships, personal consequences of marriage, inheritance and financial provisions. The special provisions relating to the formation of marriage, nullity and dissolution of marriage and divorce are to be found in the Marriage Act 1938. Major changes to the law on divorce (by the abolition of absolute grounds for divorce), maintenance provisions and introduction of mediation into the Marriage Act introduced when this act was amended in 1999.


Major reforms of the law relating to children were brought by the Kindsch aftsrechtsanderungsgesetz (Act on the amendment of Laws Relating to Children 2001). The Act came into force on 1 July 2001.


The Jurisdiction Act and the Civil Procedures Act laid down the rules relating to the administration of justice in contentious proceedings. Außerstreitgesetz (Act on Non-Contentious Proceedings) lays down the procedural rules for non-contentious proceedings.


Case law is used as an aid to the interpretation of family law provisions; it does not have binding force under Austrian law.


Courts


There is no family law in Austria. Judges sitting in the district courts in private hearings, hear family cases. Responsibility for all family law matters is of a judge appointed by district courts with more than one judge, i.e., nullity and dissolution of marriage

and divorce, filiation proceedings, maintenance claims and other disputes resulting from family relationships. It is the special duty of judges in family law to guide and instruct parties not represented by lawyer, and have a duty to attempt reconciliation at all stages of the procedure.


District courts file appeals at the Landesgerichte (Regional Courts) and the Supreme Court.


Adjudication of disputes


Disputes relating to the division of assets, maintenance and the custody of children are settled out of court, either by agreement between the parties or by negotiation between lawyers. Slowly Alternative forms of dispute resolution (e.g., mediation) are gaining importance in practice.


Lawyers


There is no distinction between solicitors and barristers in Austria, the legal profession is unified. There are some lawyers, specialised in family law. Mostly the parties prefer to be represented but legal representation is not obligatory in first instance proceedings under Austrian family law.


Legal aid


The proceedings which are not wilful and devoid of any prospect of success get full or partial legal aid. It may be granted in form of temporary loan to applicants who are incapable of meeting procedural costs of the courts and lawyers. Court fees and lawyer’s costs are covered by the legal aid. Court officers can also represent the parties instead of lawyers.

With an inventory of assets and liabilities of the party, the application for legal aid is submitted personally, or in writing. The inventory must be up-to-date and must reflect the position of the claimant at the present time or in the last four weeks. If the party has means to do so, the legal aid loan is needed to be repaid after the completion of the proceedings. The limitation of repayment of loan is three years.


Domicile


Definitions of ‘domicile’ and ‘habitual residence’ under Austrian law differ according to the field of law in question (e.g., tax law, electoral law, registration, civil procedure, conflict of laws etc). A party must be either domiciled or habitually resident in Austria, to establish jurisdiction in the Austrian courts. If a person is residing in Austria with an expressed or implied intention of remaining there permanently, he or she is domiciled in Austria. A person must have substantial (professional and social) connections with the country and has to be factually present in Austria for approximately six months to establish habitual residence in Austria.


Marriage


INTRODUCTION


The parties must not be the subject of special marriage impediments and must comply with certain formalities in order to create a valid marriage. If these conditions are not satisfied, it may lead to annulment or may provide grounds for dissolution of the marriage.


Engagement


An engagement is seen as an unenforceable preliminary contract. Dissolution of an engagement may lead to a claim for financial damages, and is a ground for revocation of donations.


Conditions of a valid marriage


The parties must:


(i) be of the opposite sex. Austrian law does not provide for partnerships of parties of the same sex.

(ii) be at least 18 years old and full of capacity. If a party is at least 16 years of age, he or she can be declared mature by a court in a certain circumstances. This will permit the 16-year-old to marry a person of full capacity. Whether or not permission is granted is a matter of discretion for the court, which will operate a similar procedure to that which applies for the court, which will operate a similar procedure to that which applies in determining whether a parent is unreasonably withholding consent.

(iii) have parental consent if under the age of 18. However, such consent may be provided by the court if it is unreasonably withheld by a parent. Persons without capacity cannot give valid consent to a marriage. A person who has only partial capacity needs the consent of his or her agent.

(iv) not be within the prohibited degrees of relationship. Marriage between ascendants and descendants in the direct line, and between full and half brothers and sisters, is prohibited. While an adoption is in force, adopter and adoptee cannot marry. Upon application an application may be dissolved by the court.

(v) not already be married. If a spouse has disappeared and/or is presumed dead, a decree of declaration of death can be obtained. A subsequent marriage dissolves the marriage with the person declared dead.


Formalities


Marriages can be solemnised only in the form of civil ceremony, under Austrian law. Religious ceremonies are not recognised as valid marriages. The marriage is celebrated before the registrar who has competence in the area in which the marriage is celebrated by the parties in person and jointly.


Nullity of marriage


A marriage is considered null and void if:


· the parties are not respectively male and female; or

· the marriage is not celebrated before a registrar. A marriage before a person who holds him or herself out as a registrar and publicly exercises this function will be regarded as valid even if the registrar did not have the required authority, provided that person registers the marriage.

A marriage is voidable if:

· the marriage is bigamous;

· the parties are within the prohibited degrees of relationship;

· the marriage has not taken place according to the procedural requirements (however any such defect is healed after five years of cohabitation as husband and wife by the parties);

· one of the parties did not have capacity at the time of the marriage. Children under the age of seven years and persons who are prevented from acting rationally due to their mental state lack capacity. This defect is healed if the party becomes capable and expressly or implicitly declares that he or she is willing to continue the marriage;

· the marriage has been concluded exclusively or mainly for the purpose of obtaining the surname or the citizenship of the other party. This defect is difficult to prove and is healed after five years of cohabitation as husband and wife; and

· both parties know at the time of marriage that a former spouse declared dead was still alive.


Until annulled by the court, void and voidable marriages are valid. Marriage can be sought annulled either by the parties or by the prosecutor. After the final judgement, the marriage takes effect ex tunc. Children from void marriage are considered legitimate. If the parties knew about the nullity of the marriage at the time of marriage, according to the unjust enrichment provisions, financial relations between the parties are resolved. The provisions regarding financial relations on divorce are applicable if one of the parties did not know that the marriage is void or voidable. Damages can also be claimed by the innocent party from the other ‘spouse’.


Dissolution of marriage


A marriage can be dissolved:


· if there was an absence of consent by a party’s legal representative where that party was only of partial capacity at the time of marriage;

· if an error occurred about either the character of the ceremony of marriage, the declaration given to conclude a marriage, the identity of the partner or about fundamental circumstances relating to the person of the partner;

· if the person has been concluded as a result of fraud or duress; or

· if the marriage has been concluded following a declaration of death of a former spouse who is found to be still alive.


Party can bring a claim entitled to dissolution of marriage within one year upon knowledge of the facts and cease of the duress. The marriage is dissolved ex nunc after the final judgement.


Recognition of foreign marriages and applicable law


The International Civil Law Code lays down the provisions relating to the recognition of foreign marriages. Capacity for marriage and conditions for nullity or dissolution are determined in accordance with each party’s personal law. If a foreign marriage complies with the formalities of other party’s personal law then it is recognised as formally valid. It is also sufficient to comply with the formalities required by the lex loci celebrationis.


In accordance with the spouses’ common or last common personal law, which one party still retains, the personal consequences of a marriage are determined. Otherwise the law of the country of common habitual residence of the spouses, or the last common habitual residence, which one party still retains, is applicable. The legal effects of the marriage are determined according to the Austrian law, if a marriage has not been validly contracted according to the parties’ personal law or that of the country of common habitual residence. However, when the parties have a stronger link to a third country in which the marriage is also recognised, this rule does not apply.


According to the spouses’ express choice of law, or the law governing the legal effects of the marriage, the financial consequences of a marriage are determined.



LEGAL CONSEQUENCES OF MARRIAGE

Personal consequences


Spouses have equal rights and duties in relation to each other. It is their duty to live in matrimonial community, conjugal faith and to provide mutual support. Spouses must assist each other in each other’s gainful employment. Spouses are under a duty to reach agreement on organising their conjugal life, especially housekeeping, employment, mutual support and parental authority, taking into account the welfare of the children and the equality of each party’s contributions.


Citizenship


Austrian citizenship can be acquired by birth or by naturalisation:


(a) A child born of married parents will be an Austrian citizen if, at the time of birth, at least one parent has Austrian nationality.

(b) A child born of unmarried parents will be an Austrian citizen if the child’s mother is an Austrian citizen at the time of birth.

(c) An unmarried minor child of an unmarried Austrian father and foreign mother will acquire Austrian citizenship on legitimation. After the age of 14, the child must consent to the granting of citizenship.

(d) Adopted children do not acquire Austrian citizenship automatically, but do have a right to be granted Austrian citizenship on fulfilment of the certain criteria.


It is a matter of discretion, to acquire citizenship by naturalisation. The applicant has to be an Austrian resident, generally for a period of 10 years, must not be convicted of certain crimes or subject to any restrictions under immigration law, must earn his or her living and must give up his or her former nationality.


There is a right to naturalisation, in some cases:


(a) Foreign spouses do not acquire Austrian citizenship automatically, but have a right to naturalisation after three or four years of residence in Austria if the marriage has lasted one or two years. If the foreign spouse is not resident in Austria, he or she will be entitled to naturalisation if the marriage has lasted at least five years and the other spouse has been an Austrian citizen for at least 10 years.

(b) Naturalisation can also be extended to the relatives of the applicant under the same criteria. Minor unmarried children of the applicant have a right to this extension.

(c) Under special circumstances (e.g., status of a refugee, birth in Austria, full integration) the applicant only needs to prove four years of residence (or even less, if a minor child) in Austria.


Property rights


Separation of property exists on and during marriage. Spouses are treated as independent persons by law and are subject generally to the same property principles as private individuals, except:


(a) when they enter into marriage contracts and thereby alter the legal separation of property regime;

(b) on divorce, annulment or dissolution of marriage, where assets are allocated irrespective of strict property rights;

(c) on the death of a spouse, where special provisions apply to the distribution of property;

(d) in respect of occupation of the matrimonial home;

(e) in respect of special tax, pension and social security provisions.


Financial obligations


It is the mutual duty of spouses to maintain each other and their children. According to their means and to the arrangements of their conjugal life, both spouses have to contribute equally to the costs of living. This obligation can be fulfilled directly (by making financial contributions) and/or indirectly (by work in the home). In order to cover living expenses, it is the duty of spouses to enter into a gainful employment. According to established judicial practice, a spouse who does not have an income is entitled to maintenance amounting to approximately 33% of other party’s net income. The maintenance claim is calculated at 40% of the joint net incomes the net income of the claiming spouse being deducted, if both spouses have an income. For the maintenance of each entitled child, the amount is reduced by 3-4% and there is a reduction for former spouses of approximately 3%.


Parental authority


It is the duty of married parents who are living together, to share equal parental responsibilities towards their children.


FINANCIAL PROVISIONS DURING MARRIAGE


Introduction


Disputes concerning property and finance occur on the termination of marriage. Financial provision (especially maintenance) either for him or herself or for the children during marriage can be applied by a spouse.


Financial provisions from the courts


If a spouse has failed to fulfil his or her legal or contractual maintenance obligations in relation to the other spouse, interim injunctions can be passed by the district court. Injunctions can be applied for either during marriage, pending divorce or following a divorce. Adequate maintenance will be granted according to established practice. To obtain an injunction, it has to be certified by a spouse that the other spouse has infringed the maintenance obligations and that his or her own income is insufficient to ensure adequate maintenance.


Injunctions may also be granted for a child’s maintenance. In this, the child is a party to the maintenance proceedings and is legally represented by a parent. Final relief is granted in maintenance proceedings, which may be instituted during a marriage, or on or following a divorce.


Family allowance


Each minor child living in the same household in Austrian resident gets a family allowance. The amount paid is approximately EUR 105.40-145.40 per month; it depends upon the age of the child. If a child is remaining to be a student, the allowance is extended up to the age of 26. This state benefit is granted irrespective of the parents’ employment status.