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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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%.
It is the duty of married parents who are living together, to share equal parental responsibilities towards their children.
FINANCIAL PROVISIONS DURING MARRIAGE
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.
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.
A spouse who is a habitually resident in Austria will be covered by the insurance of an employed spouse as a dependent, if a spouse is without his or her own health insurance. On divorce, this right is lost. Children, grandchildren (if living in the same household), stepchildren and foster children are the dependants who are covered under the employed spouse’s insurance. Children and grandchildren are covered up to the age of 18, but this may be extended up to the age of 27 where child is a university student or is in vocational training.
Accidents at work
If an accident at work results in the death of the insured, a surviving spouse is entitled to benefits up to a maximum of 20% of the deceased spouse’s salary. Until the surviving spouse remarries or dies, such payments will be continued. Divorced spouse who gets such payments will also be entitled until he or she remarries or dies. An orphan’s pension entitlement is there for the surviving children of the deceased parent’s salary.
Unemployment benefits are personal, and payable only to the insured person. If the insured person has to maintain a family, he or she may be entitled to additional benefits.
Pension amounting 40-60% of the deceased spouse’s pension is entitled to a widow or widower of the deceased spouse, if he or she was living with the deceased spouse at the time of his or death.
Each spouse is taxed separately. Sole earners are entitled to a deductible amount of approximately EUR 363 per year for the purpose of tax calculation. If spouses are married for more than six months and the other spouse is unemployed or earns less than approximately EUR 2,180 per year. Up to a value of approximately EUR 7,267, donations between spouses are exempted from gift tax.
PROPERTY DURING MARRIAGE
The legal regime
In the absence of an agreement to the contrary, the legal separation of goods regime applies: individual ownership of assets owned before marriage and assets acquired during marriage are retained by each spouse. Both spouses remain sole creditors and debtors in respect of their own financial claims and obligations. The spouse who has no income but is active in housekeeping represents the other spouse in daily life matters concerning the conjugal household. Unless, the earning spouse has not made it clear that he or she does not wish to be represented, the represented spouse becomes the sole party to the contract.
In order to regulate the financial affairs and to replace or modify the normal legal regime, spouses enter into marriage contracts. Marriage contracts have to be set up in form of a notarial deed, in order to be valid. As per the judicial practice, marriage contracts lacking a notarial form may be healed by subsequent performance.
COMMUNITY OF PROPERTY
The extent of the community of property regime agreed upon by the spouses can vary significantly according to the terms of the respective contracts:
(a) General community of property: this covers all present and future acquisitions and inheritances.
(b) Limited community of property: community of the present property; community of the future acquisitions; community of future acquisitions and inheritance; and community of movables and acquisitions.
Community of marriage can exist during marriage or it can be deferred until the death of a spouse.
COMMUNITY OF PROPERTY DURING MARRIAGE
Either in equal shares or in shares agreed upon in the contract, both spouses are co-owners of the assets subject to community property. An instrument of title and a modus, both are required in a transfer of property, according to general property rights provisions i.e., actual handling over of the asset. While the marriage contract constitutes the instrument of title for the transfer of assets from sole ownership of one spouse to co-ownership of both spouses, the modus has to be fulfilled in accordance with general property right rules. Shares can be disposed of and validly transferred by one spouse to third parties; this constitutes misuse of property and makes that spouse responsible for the other spouse.
Spouses will be liable both in relation to their common property and each spouse’s retained property, where debts are contracted jointly by the spouses. Both spouses will be liable for debts or personal liabilities (e.g., damages claims) contracted by one spouse alone from the common property when the property regime is a general community of property. This liability does not exist in a limited community of property.
A division of property will take place, on the death or bankruptcy of one spouse. The property share belonging to the surviving spouse will remain in his or her property, while the rest of the property forms part of the deceased’s estate.
Spouses are encouraged to reach mutual agreement on a division of property, on the dissolution of marriage or divorce. The fault of each spouse for the divorce or dissolution of marriage will be taken into consideration if no agreement can be reached by the spouses. In case of no fault or equal fault, the assets brought by each party will be retained by each of them. Each spouse will have a claim for damages. Annulment of a marriage entails dissolution of the marriage contract.
COMMUNITY OF PROPERTY DEFERRED ON DEATH
A community of property regime which is deferred until the death of one of the parties does not alter the separation of property regime during the lifetime of both spouses. Therefore, each spouse may dispose of his or her assets in their entirety during his or her lifetime. A community of property regime comes into being and, after deducting debts, the active property is determined, after the death of a spouse.
All property given or promised by the wife or someone on her behalf to meet the expenses arising from marital status are the constituents of a marriage portion or dowry. As long as the marriage lasts, everything than can be sold or used in some way is dowry. Husband has full rights on it, if the dowry is money. It is the husband’s unconditionally, if it consists of a claim to money (i.e., a debt). Husband will have the use of the property if the dowry is something other than money, such as property. With the increase in the worth of property during the course of marriage, husbands benefit increase, but he cannot dispose of the property.
The marriage portion remains the property of the wife, on the death of husband. The marriage portion constitutes part of wife’s estate or will be returned to the party who provided that portion, on the death of the wife.
CONTRACTS BETWEEN SPOUSES
To protect creditors against manipulations and shifts of property between spouses, gifts and contracts between spouses have to be set up in the form of notarial deeds. The provision applies to sales agreements, donations, barter contracts, annuity settlements, loan contracts and acknowledgement of debts. Subsequent performance can heal the contracts lacking in notarial form.
Occupation of the matrimonial home
Rights to dispose of the matrimonial home are restricted by the spouses. If one spouse is required to fulfil the urgent housing needs of the other spouse, the former may not dispose of the home, and he or she is refrained from all acts which would limit the other spouse’s right of occupancy (e.g., changing the locks). No matter, the spouse is the owner, tenant or member of a co-operative building society, this rule is applied. If the spouse is forced by circumstances to dispose of the home or if upkeep of the property becomes an unreasonable demand, this obligation is terminated.
PROTECTION AGAINST DOMESTIC VIOLENCE
For an injunction against a spouse who has been violent, a spouse and his or her next of kin can apply to the district court. An ouster order (Exekutionsordnung) ejecting a spouse from the matrimonial home and its immediate surroundings may be granted as a remedy of last resort, when cohabitation would be unreasonable due to violent assaults, threats of assaults or behaviour gravely afflicting the injured spouse’s psychological state. To prevent a violent spouse from contacting the applicant and his or her next of kin, an injunction may also be granted.
An injunction cannot exceed a period of three months, if it is granted in the absence of proceedings for divorce, dissolution or annulment of marriage.
Author: Navin Kumar Jaggi