The Austrian Divorce Law – A Comprehensive Guide

(Note: This post is intended for general informational purposes only and does not constitute legal advice. For individual legal counsel, please consult a specialized attorney you trust. Despite the utmost diligence, no guarantee is given for the timeliness, completeness, or accuracy of the content. This guide cannot replace personalized legal advice.)

Introduction
1.1 The Significance of Divorce in Society
1.2 Historical Development of Divorce Law in Austria
1.3 Marriage and Divorce under the General Civil Code (ABGB)
1.4 Basic Terms: Marriage, Divorce, and Related Topics
Legal Foundations
2.1 The Marriage Act (EheG)
2.2 The General Civil Code (ABGB)
2.3 Supplementary Acts and Regulations
2.4 European Context (EU Regulations, International Jurisdiction)
Requirements for Divorce in Austria
3.1 Principle of Irretrievable Breakdown
3.2 Fault and the Fault Principle
3.3 Breakdown Without Specific Fault
3.4 Amicable vs. Contentious Divorce
The Path to an Amicable Divorce
4.1 General Requirements (including six months of separation)
4.2 The Joint Divorce Petition
4.3 The Amicable Divorce Agreement (Maintenance, Custody, Assets)
4.4 Procedure for an Amicable Divorce
4.5 Pros and Cons of an Amicable Solution
4.6 Tips for Avoiding Future Disputes
Contentious (Litigious) Divorce
5.1 Grounds for Contentious Divorce
5.2 Filing a Claim and Statement of Defense
5.3 Evidence: Witnesses, Documents, Experts
5.4 Hearing Process and Possible Settlement Discussions
5.5 The Judgment and Its Consequences (Maintenance, Custody, Costs)
5.6 Legal Remedies: Appeal, Revision, and Appellate Procedure
Maintenance and Alimony
6.1 Spousal Maintenance – Principles, Requirements, Duration
6.2 Child Maintenance (Alimony) – Percentages, Guidelines, Adjustments
6.3 Maintenance in Cases of Equal or Predominant Fault
6.4 Special Cases: Caregiving Maintenance, Waiver of Maintenance, Advance on Maintenance
6.5 Enforcement of Maintenance Claims
Custody and Contact Rights (Visitation)
7.1 Principles Concerning the Child’s Best Interests
7.2 Joint Custody After Divorce
7.3 Sole Custody: Requirements and Consequences
7.4 Contact Rights (Visitation) in Detail
7.5 Conflicts Regarding Custody – Role of the Court, Role of Youth Welfare Authorities
7.6 International Child Custody, Cross-Border Cases
Division of Assets and Settlement of Debts
8.1 Marital Household Property, Marital Savings, Extraordinary Contributions
8.2 Procedure for the Division: Statutory Criteria
8.3 Special Case: The Marital Home and Household Items
8.4 Consideration of Gifts and Inheritances
8.5 Joint Debts – Liability Issues and Compensation Claims
8.6 Examples and Common Sources of Error
Mediation and Out-of-Court Settlements
9.1 Benefits and Objectives of Family Mediation
9.2 Procedure of Mediation, Role of the Mediator
9.3 Limits and Contraindications for Mediation
9.4 Legal Effect of Mediation Agreements
9.5 Public Funding, Costs, and Duration
International Divorces
10.1 The Brussels IIa or Brussels IIb Regulation – Jurisdiction
10.2 The Rome III Regulation: Applicable Law for Spouses of Different Nationalities
10.3 Recognition of Foreign Divorces in Austria
10.4 Cross-Border Maintenance Claims
10.5 International Child Abduction (Hague Convention on Child Abduction)
Costs and Fees
11.1 Court Fees According to Tariff Item
11.2 Attorney Fees – The Attorney Tariff Act (RATG) vs. Flat Fees
11.3 Additional Costs (Experts, Witness Compensation, Interpreters)
11.4 Allocation of Costs Based on Fault?
11.5 Legal Aid (Prozesskostenhilfe / Verfahrenshilfe)
11.6 Typical Cost Scenarios
Psychological and Social Aspects of Divorce
12.1 Emotional Stress and Coping Strategies
12.2 Impact on Children and Adolescents
12.3 Counseling Services, Therapy Options, Conflict Management
12.4 Loyalty Conflicts and Parent-Child Relationships
12.5 Children’s Rights and Participation in Legal Proceedings
12.6 Role of External Advisers: Psychologists, Therapists, Social Workers
After the Divorce
13.1 Finality of the Divorce Judgment
13.2 Modification of Maintenance Agreements When Income Changes
13.3 Changes in Custody and Contact Rights
13.4 Remarriage and Its Impact on Maintenance
13.5 Consequences Under Inheritance Law After Divorce
13.6 Other Formalities (Name Changes, Registration, Insurance)
Special Topics
14.1 Divorce in Old Age: Pension Splitting and Retirement Regulations
14.2 Same-Sex Marriages and Registered Partnerships
14.3 Divorces Involving Corporate Interests and Complex Asset Structures
14.4 Protection from Violence and Interim Injunctions
14.5 Divorce and Tax Issues (Family Bonus, Allowances, Real Estate Gains Tax)
14.6 Separation Agreements and Marriage Contracts (Prenuptial, Postnuptial)
Comprehensive Checklist for Those Affected
15.1 Preparing for Separation
15.2 Gathering Documents (Proof of Income, Asset Statements, etc.)
15.3 Counseling Meetings and Mediation Services
15.4 Checklist for Court Proceedings (Documents, Deadlines, Possible Evidence)
15.5 Follow-Up and Ongoing Adjustments
15.6 Professional Network (Attorneys, Notaries, Mediators, Therapists)
Questions and Answers (FAQ)
16.1 “How long must I be separated to get an amicable divorce?”
16.2 “What if my ex-partner refuses to pay maintenance?”
16.3 “Can I bring my children to court?”
16.4 “Am I allowed to move abroad after the divorce?”
16.5 “Do both of us need to hire a lawyer?”
16.6 “What happens to the family dog after the divorce?”
Conclusion and Outlook
17.1 Opportunities for a New Beginning
17.2 Importance of Amicable Solutions
17.3 The Future of Austrian Divorce Law – Reforms and Trends
17.4 Final Thoughts: Why Professional Help Is So Important
Contact

1. Introduction

1.1 The Significance of Divorce in Society

Marriage as a partnership between two people is often regarded as a central institution of our society. It comes with numerous rights and obligations and – at least traditionally – provides the foundation for a stable family structure. However, more and more marriages are ending prematurely: Statistics show that in Austria around one-third of all marriages end in divorce. In some regions and age groups, the divorce rate is even higher.

This high figure demonstrates that divorce is no longer a rare phenomenon at society’s margins but has become a fixed reality in many people’s lives. For those affected, it often brings considerable emotional turmoil and raises numerous legal questions: Who retains custody? How is maintenance arranged? How is the joint property that has accumulated over years or decades divided?

Society itself is challenged by the increasing number of divorces. It must provide suitable legal frameworks that both reflect the diversity of modern family forms and ensure protection for those in need (e.g., children). This includes establishing an appropriate divorce law, which in Austria is based on the Marriage Act (EheG), the General Civil Code (ABGB), as well as various supplementary laws and regulations.

1.2 Historical Development of Divorce Law in Austria

Divorce law in Austria can rightly be described as a historically evolved construct. Its origins date back to the 19th century, when the General Civil Code (ABGB) was created. At that time, the prevailing principle was that marriage was largely an unbreakable bond between two people. Divorce was not entirely ruled out but was subject to strict conditions.

Over time, the grounds for divorce were expanded, and procedural reforms were introduced. A significant turning point came in 1938 during Austria’s annexation to the German Reich, when the German Marriage Act came into force in Austria. Many of its provisions, in adapted form, still apply today. Further major reforms took place in the 1970s and 1980s when women’s legal status was strengthened and attention increasingly turned to children’s rights.

Another factor influencing divorce law is the ongoing process of Europeanization. Since Austria joined the EU in 1995, more and more European regulations and directives have come into force that supplement or shape the national legal framework—particularly with regard to international jurisdiction and cross-border maintenance or custody proceedings.

1.3 Marriage and Divorce under the General Civil Code (ABGB)

The ABGB, one of the oldest civil codes in the world, lays down the fundamental rules of civil and family law in Austria. It defines key terms such as “marriage,” “family,” and “parental rights and responsibilities.” Over the years, numerous amendments have been passed to adapt these regulations to the realities of modern relationships, for instance by introducing registered partnerships for same-sex couples (and later opening up marriage for same-sex couples as well) or by extending custody and visitation rights in divorce situations.

At its core, the ABGB continues to protect marriage and family as a fundamental unit. At the same time, it sets forth clear legal guidelines on how to proceed in the event of a divorce, the claims arising from it, and the institutions responsible.

1.4 Basic Terms: Marriage, Divorce, and Related Topics

To understand divorce law, it is essential to define a few basic terms:

Marriage: A contract between two people concluded at the registry office, establishing a domestic partnership that generates rights and obligations (e.g., maintenance obligations, duty of fidelity).
Divorce: The judicial dissolution of this marriage. In Austria, this can be done either amicably (joint petition) or contentiously (by filing a lawsuit).
Registered Partnership: A form of legal recognition for same-sex couples, largely mirroring the rights and obligations of marriage. Since marriage was opened to same-sex couples, both legal forms exist alongside each other, though the legislator has not yet fully aligned all norms.
Custody: The right and duty of parents to care for their minor child, represent the child legally, and manage the child’s assets.
Maintenance: Payments that one person must make to another (e.g., one spouse to the other, or a parent to a child) to cover their living expenses.

2. Legal Foundations

2.1 The Marriage Act (EheG)

The Marriage Act (Ehegesetz) is the primary legal source for questions concerning marriage, weddings, and divorce in Austria. In its current version, it provides detailed regulations on:

The prerequisites for entering into marriage
The ways in which marriage can be dissolved, including detailed provisions on grounds for divorce
Procedural aspects (e.g., which court has jurisdiction, how lawsuits are filed)

It also covers issues of nullification and annulment of marriage, although these are less common in daily life than “classic” divorce. Even though certain parts of the Marriage Act date back to 1938, it has been amended several times to reflect modern societal developments. Nonetheless, some language remains historically rooted and is reinterpreted repeatedly through case law and rulings of the Supreme Court (OGH).

2.2 The General Civil Code (ABGB)

As mentioned above, the ABGB (in force since 1812) is Austria’s “basic law” for civil matters. In Sections 44 et seq., it defines marriage and includes important provisions on the effects of marriage, parental custody, and maintenance. The ABGB also contains inheritance rules relevant after a divorce.

In areas such as asset division, custody, and maintenance obligations, the Marriage Act is closely linked to the general provisions of the ABGB or refers to them directly. This interwoven system means that individual norms can only be properly understood in the context of the others.

2.3 Supplementary Acts and Regulations

In addition to the Marriage Act and the ABGB, there are numerous other legal sources that may become relevant in a divorce. Some examples include:

Non-Contentious Proceedings Act (AußStrG): Governs certain judicial procedures that are not handled via classic litigation (“lawsuit–defendant”) but rather in non-contentious proceedings (e.g., custody decisions, visitation arrangements).
Amendments to Child and Name Laws: Contain special provisions on children’s names, maintenance, and parental custody.
Enforcement Code (EO): Relevant when maintenance obligations must be enforced by the courts (e.g., wage garnishment).
Federal Act on the Regulation of Child Support (Kindesunterhaltsgesetz): Sets out specific guidelines for calculating and enforcing child support.

2.4 European Context (EU Regulations, International Jurisdiction)

With Austria’s accession to the EU in 1995 and growing legal harmonization within Europe, family law matters have increasingly been standardized. Key European regulations include:

Brussels IIa / IIb Regulation: Governs jurisdiction and recognition of judgments in matrimonial matters and matters of parental responsibility.
Rome III Regulation: Determines which national law applies to a divorce if the spouses have different nationalities or reside in different countries.

These regulations are particularly important when one spouse is of another EU nationality, lives abroad, or the marriage took place abroad.

3. Requirements for Divorce in Austria

3.1 Principle of Irretrievable Breakdown

The central principle of Austrian divorce law is the “irretrievable breakdown” of the marriage. A divorce presupposes that the marital partnership no longer exists and that restoration of the marital cohabitation is not expected. In contentious proceedings, this is examined in detail. In an amicable divorce, both spouses merely have to declare their marriage irretrievably broken.

3.2 Fault and the Fault Principle

Traditionally, fault (e.g., adultery, violence, severe insults, persistent refusal to fulfill marital duties) plays a significant role in Austrian divorce law. The spouse who is “at fault” for the breakdown of the marriage may be held accountable in divorce proceedings—for example, through a maintenance obligation toward the “innocent” spouse.

However, over the past decades, greater emphasis has been placed on the “breakdown principle,” so that divorce is now possible even without a formal determination of (sole) fault. Nonetheless, classic fault-based divorces have not been abolished. Someone seeking a divorce can still invoke the partner’s misconduct.

3.3 Breakdown Without Specific Fault

In some cases, there may be no clear fault on one spouse’s part, or both spouses may have contributed equally to the marriage’s failure. Austrian law also allows a divorce if the breakdown is obvious. For instance, years of living apart or mutual consent to end the marriage can suffice to establish the irretrievable breakdown without attributing specific blame.

3.4 Amicable vs. Contentious Divorce

This gives rise to the distinction between an amicable divorce and a contentious (or “litigious”) divorce:

Amicable Divorce (pursuant to Section 55a EheG): Both spouses jointly declare that the marriage has irretrievably broken down, that they have lived apart for at least six months, and that they have settled the consequences (maintenance, custody, property division) in a written agreement.
Contentious Divorce (pursuant to Sections 49 et seq. EheG): One spouse files a divorce petition (lawsuit) against the other, often citing fault. Alternatively, the breakdown might be established without attributing fault. The court ultimately decides whether the marriage should be dissolved.

4. The Path to an Amicable Divorce

An amicable divorce is generally the fastest, least expensive, and least stressful way to end a marriage—provided both spouses agree on the desire to divorce and on the essential terms of the divorce.

4.1 General Requirements (including six months of separation)

Under the Marriage Act, an amicable divorce requires, among other things:

At least six months of separation (“bed and board”). This does not necessarily mean living in separate homes, but it does mean no longer living as a marital unit (e.g., separate bedrooms, no shared household in the broader sense).
The irretrievable breakdown of the marriage. Both spouses state that they do not intend to resume marital cohabitation.
A joint divorce petition. This may be filed in writing or orally placed on record.

4.2 The Joint Divorce Petition

Both spouses file a joint petition for divorce at the competent district court (the court with jurisdiction over the place of their last shared main residence). This petition should include:

Full personal details (name, address, date of birth)
Information about the date and place of marriage
Information about the separation (time, duration)
A statement that the marriage has irretrievably broken down
A reference to the attached divorce agreement

Alternatively, the petition can be made orally on record, with both spouses appearing in person and explaining to the court their intention to divorce.

4.3 The Amicable Divorce Agreement (Maintenance, Custody, Assets)

The core of an amicable divorce is the divorce agreement, which must cover the following issues:

Spousal Maintenance: Who pays whom, how much, and for how long? Or is maintenance waived?
Child Maintenance: If there are children, what financial support does the non-resident parent provide?
Custody and Contact Rights: Who has custody? How are visitation times or shared parenting schedules arranged?
Division of Assets: How are savings, debts, real estate, cars, and other property divided? Who stays in the marital home? Are there any compensation payments?

All these points must be recorded in a written agreement, which both spouses must sign in their own handwriting. The court will review the agreement and approve it as long as it is not contrary to public policy and does not jeopardize the child’s best interests.

4.4 Procedure for an Amicable Divorce

Submission of the Petition: Either in writing (common petition) or orally on record.
Court Date: Generally, the court schedules a hearing. During that hearing, the judge will informally question both spouses about whether the marriage truly has broken down and whether they understand and voluntarily accept the agreement.
Approval: If all requirements are met, the court approves the divorce and the agreement.
Finality: The divorce becomes final if both parties waive any right to appeal or once the time limit for appeals has expired.

In many cases, an amicable divorce is concluded within a few weeks or months. Often the court will grant the divorce at the first hearing.

4.5 Pros and Cons of an Amicable Solution

Advantages

Shorter processing time
Significantly lower costs (reduced attorney’s fees and court fees)
Less emotional stress and reduced likelihood of escalating conflicts
Greater certainty in planning, as key issues are settled in advance

Disadvantages

Both spouses must be willing to compromise; if one party is not cooperative, it will not work.
One spouse might forgo certain rights out of ignorance. Professional legal advice is recommended.
A spouse who is in a weaker emotional or financial position might too quickly waive maintenance to “keep the peace.” Thorough consideration is needed.

4.6 Tips for Avoiding Future Disputes

Forward-Looking Approach: Consider future changes (e.g., career development, new relationships, health issues).
Expert Advice: Consult a lawyer who specializes in family law. Notarial certification may also be an option for maximum legal certainty.
Comprehensive Provisions: Ensure that all key points (pensions, private insurance, debt allocation) are included in the divorce agreement.
Neutral Setting: If possible, negotiate divorce terms in a neutral setting or with your attorney present. This can help ease tensions.

5. Contentious (Litigious) Divorce

Not all spouses can come to an amicable solution, especially if the relationship has broken down amid conflict. In those cases, a contentious divorce is the remaining option—a court procedure governed by the rules of civil procedure (ZPO).

5.1 Grounds for Contentious Divorce

The most common reasons for a contentious divorce are:

Marital Misconduct: Serious breaches of marital duties, such as adultery, physical or psychological abuse, grave insults, or persistent refusal to live together without good cause.
Breakdown Without Fault: The marriage is broken down without a specific “marital offense” (for example, irreconcilable differences).
Annulment or Declaration of Nullity (rare cases, e.g., sham marriages): The formal procedure is similar to divorce but follows different prerequisites (deception, incapacity, etc.).

In fault-based divorces, one spouse tries to prove the other spouse’s misconduct. This can significantly affect spousal maintenance, especially if the “innocent” spouse demands support.

5.2 Filing a Lawsuit and Statement of Defense

A contentious divorce begins when the plaintiff files a divorce lawsuit with the competent district court. The complaint must include:

The names and addresses of both spouses
The date of marriage
A clear statement of grounds for divorce
Specific allegations of fault (if relevant)
Proposed evidence (witnesses, documents)

The defendant is then given a deadline to respond (statement of defense). They may dispute the accusations, raise their own fault claims, or also seek a divorce.

5.3 Evidence: Witnesses, Documents, Experts

In a contentious divorce, the plaintiff must prove the alleged misconduct. The court will gather evidence, which can include:

Witness Testimonies: Family members, friends, neighbors, co-workers who witnessed specific incidents (e.g., abuse, insults, adultery).
Documents, Photos, Messages: Text message logs, emails, medical records, police or official reports, etc.
Expert Opinions: In special cases (e.g., mental illness, property valuations), expert reports may be required.

5.4 Hearing Process and Possible Settlement Discussions

Usually, the court will hold several hearings, at which the parties can present their positions and evidence. The judge often attempts to encourage a settlement to shorten the process. If no agreement is reached, the taking of evidence continues until all relevant facts have been clarified.

5.5 The Judgment and Its Consequences (Maintenance, Custody, Costs)

At the end of the proceedings, the court issues a judgment that:

Grants the divorce (and possibly assigns fault) or dismisses the divorce petition.
Determines spousal maintenance, considering the fault principle if relevant.
Rules on custody and contact rights for any children.
Allocates the costs of the proceedings (usually the losing party bears them, but in partial success or fault-based cases, costs may be split).

5.6 Legal Remedies: Appeal, Revision, and Appellate Procedure

The losing party can appeal (Berufung) the district court’s judgment within four weeks to the regional court. If fundamental legal questions are involved, the decision can also be appealed to the Supreme Court (OGH) (Revision). The appeals process can significantly prolong proceedings, taking years in complex cases.

6. Maintenance and Alimony

Once the divorce is final, financial security often becomes a major concern, especially if one spouse has little or no income, or if children were born in the marriage. Austrian law distinguishes between spousal maintenance and child maintenance (alimony).

6.1 Spousal Maintenance – Principles, Requirements, Duration

6.1.1 Overview

The purpose of spousal maintenance is to cushion the economic consequences of a divorce. If one spouse primarily managed the household or looked after the children during the marriage, they may be left without adequate employment after divorce. The law provides for a maintenance claim to ensure a basic livelihood or, depending on fault, maintain a standard of living commensurate with the marital circumstances.

6.1.2 Maintenance Depending on Fault

Innocent Party: A spouse who is divorced through no fault of their own may be entitled to maintenance of up to about 33% of the net income of the liable spouse, depending on various factors (number of children, subsistence levels, etc.).
Equal Fault: If both spouses have contributed equally to the breakdown of the marriage, often neither party has a claim against the other or they may agree to waive mutual claims.
Predominant Fault: If one spouse is predominantly to blame, the other spouse may claim maintenance—although this may be reduced if the latter also contributed (albeit to a lesser degree) to the breakdown.

6.1.3 Caregiving Maintenance

If one spouse cares for a joint child who is still dependent (e.g., an infant or toddler), they may be entitled to “caregiving maintenance,” even if both spouses are equally at fault. This is to compensate for the caregiver’s inability to engage in full-time employment.

6.1.4 Limitation and Termination

A maintenance claim can be time-limited, for instance if the dependent spouse is expected to return to work in the foreseeable future. It can end if the recipient remarries or forms a partnership tantamount to marriage (a contentious issue in practice, since what constitutes a “marriage-like” relationship can be disputed).

6.2 Child Maintenance (Alimony) – Percentages, Guidelines, Adjustments

6.2.1 Fundamentals

Child maintenance (often referred to as “alimony”) is the financial obligation of a parent to cover the living costs of a child if the parents do not share a household. The child has a legal right to receive appropriate support from both parents according to their capabilities. Typically, the resident parent fulfills their duty through daily care and upbringing, while the non-resident parent pays monetary support.

6.2.2 Percentages by Age and Number of Children

The Supreme Court has established guideline percentages for child maintenance:

First child: approximately 16–18% of net income
Second child: an additional ~16% (sometimes 16–18%, depending on the situation)
Third child: an additional ~10–16%, depending on the circumstances

These percentages may increase with the child’s age. Thus, an additional 1–2% can be added once the child reaches 10 or 15 years old. However, there is an upper limit (“playboy limit”) to prevent excessively high child support payments.

6.2.3 Adjustment and Indexation

Because the obligor’s income can change (e.g., salary increase, unemployment), maintenance can be recalculated. Often a dynamic adjustment is agreed upon, linking the maintenance amount to annual changes in income. If no agreement is reached, the court may be asked to adjust the payment.

6.2.4 Self-Retention and Minimum Support

The obligor cannot be reduced below a certain subsistence level. Therefore, a certain amount of disposable income is taken into account when calculating support. If the obligor’s income is very low, the child support amount may also be lower or supplemented by state aid (advance on maintenance).

6.3 Maintenance in Cases of Equal or Predominant Fault

Spousal maintenance largely depends on fault, whereas child maintenance is governed by the principle that both parents must ensure the child’s support—regardless of who caused the divorce. In cases of equal fault, neither spouse may be entitled to spousal maintenance from the other. However, caregiving maintenance might still be due if the spouse is taking care of a small child.

6.4 Special Cases: Caregiving Maintenance, Waiver of Maintenance, Maintenance Advances

Caregiving Maintenance: As mentioned, when a spouse is busy caring for young children and cannot fully return to work.
Waiver of Maintenance: A spouse can, in principle, waive spousal maintenance, provided it is not morally reprehensible (sittenwidrig). Waiver of child maintenance, however, is not possible, since it concerns the child’s rights.
Maintenance Advances (Unterhaltsvorschuss): If the maintenance debtor fails to pay, the state can step in with an advance and recoup the money from the debtor later.

6.5 Enforcement of Maintenance Claims

If the obligor defaults or pays late, a final maintenance order (e.g., a court ruling) can be enforced. This often involves garnishing wages or salaries. In more severe cases, bank accounts or other assets can be seized, and further enforcement measures (e.g., seizure of personal property) may be applied.

7. Custody and Contact Rights (Visitation)

In many divorces—especially those involving minor children—deciding custody and visitation is the most emotional and vital issue. Essentially, it concerns how children will grow up, who will make decisions for them, and how the non-custodial parent will maintain contact.

7.1 Principles Concerning the Child’s Best Interests

The overriding principle in custody matters is always the best interests of the child. This principle governs all judicial decisions in family law. The court will consider:

The child’s bond with both parents
Each parent’s parenting skills and willingness to cooperate
The broader family network (grandparents, school, community)
The child’s wishes and needs—depending on age and maturity, the child may be heard in court.

7.2 Joint Custody After Divorce

Austrian law generally supports joint custody, even after divorce, provided the parents can cooperate and it serves the child’s best interests. Joint custody means that both parents share responsibility for major decisions (e.g., choice of school, significant medical procedures, religious upbringing). Day-to-day matters (e.g., meal times, daily routine) can be managed by whichever parent the child is with at the time.

7.3 Sole Custody: Requirements and Consequences

If parents cannot cooperate or if joint custody conflicts with the child’s best interests (e.g., in cases of domestic violence or severe communication breakdown), the court may award sole custody to one parent. The other parent generally retains contact rights and, in important matters, may still have some say, but the custodial parent holds primary decision-making authority.

7.4 Contact Rights (Visitation) in Detail

The parent without custody typically has both the right and the obligation to maintain contact with the child, as long as it serves the child’s best interests. Contact usually covers:

Personal visits (weekends, holidays, school breaks)
Phone calls, video calls
Shared vacations or leisure activities

If conflicts arise, the court may specify the scope of contact, transfer arrangements, or even require supervised visitation (accompanied by a third party).

7.5 Conflicts Regarding Custody – Role of the Court, Role of Youth Welfare Authorities

In contentious cases, the court may involve the youth welfare office or a child and youth welfare organization to investigate the circumstances and provide a report. Psychological expert opinions may also be ordered to assess parenting competence. The court then balances all interests and makes a decision that it believes best serves the child’s welfare.

7.6 International Child Custody, Cross-Border Cases

With increasing mobility and binational marriages, there are more cross-border custody disputes. The Hague Convention on the Protection of Children (and the Brussels IIa/b Regulation within the EU) governs jurisdiction, recognition, and enforcement of custody orders across national boundaries. A particularly serious issue is child abduction by a parent who moves the child to another country without the other parent’s consent. In such cases, the Hague Convention on Child Abduction aims to quickly return the child to their habitual environment.

8. Division of Assets and Settlement of Debts

8.1 Marital Household Property, Marital Savings, Extraordinary Contributions

Dividing joint property is often as contentious as questions of maintenance and custody. The law distinguishes among:

Marital Household Property: Assets primarily used for the spouses’ common lifestyle during the marriage (e.g., marital home, family car, household items).
Marital Savings: Financial reserves, savings accounts, and securities accumulated during the marriage.
Extraordinary Contributions: Inheritances, gifts, or property one spouse already possessed before marriage—these typically do not become part of the division.

8.2 Procedure for the Division: Statutory Criteria

If the spouses cannot agree on dividing their property, the court decides based on equitable factors, particularly:

Length of marriage
Child-rearing and household contributions
Financial contributions by both spouses
Degree of fault in the breakdown (though in practice, fault matters less for asset division than for maintenance)

Courts often attempt to balance the “net marital estate” by offsetting each spouse’s share. Complex issues may arise, such as improvements made to the other spouse’s property or division of marital debts.

8.3 Special Case: The Marital Home and Household Items

The marital home is typically the family’s center of life, so deciding who stays is a common flashpoint. If one spouse is the sole owner, that spouse generally has priority but may owe compensation to the other spouse if they invested in that property. In the case of a rental, the court can decide which spouse will take over the lease—especially important when children are involved—to avoid undue hardship.

8.4 Consideration of Gifts and Inheritances

Gifts or inheritances a spouse receives during the marriage are generally excluded from division. They remain the property of the spouse who received them. Exceptions may arise if the money was invested in a joint project (e.g., home construction), suggesting an implied intent to benefit both spouses.

8.5 Joint Debts – Liability Issues and Compensation Claims

If the spouses jointly took out a loan (e.g., for a house or car), they remain jointly and severally liable to the creditor—regardless of the divorce. The court can allocate responsibility internally, but this does not affect the creditor’s right to seek payment from either spouse. A spouse who ends up paying off a shared debt alone can claim reimbursement from the other spouse, depending on the circumstances.

8.6 Examples and Common Sources of Error

Mistake 1: Forgetting that pension entitlements or private insurance policies (e.g., life insurance) may also be considered in the division.
Mistake 2: Not asserting claims for improvements made to the other spouse’s property during the marriage.
Mistake 3: Poor documentation, leading to ignorance about certain assets (hidden accounts, cash reserves).

9. Mediation and Out-of-Court Settlements

9.1 Benefits and Objectives of Family Mediation

Mediation is a structured process guided by a neutral third party (mediator) to facilitate an amicable resolution. Its goals include de-escalating conflict, improving communication, and finding a win-win situation.

Less expensive than prolonged court proceedings
Saves time—often only a few sessions are needed
Better parent relationship post-divorce—benefiting children
Confidentiality: Mediation is private, unlike a public court hearing

9.2 Procedure of Mediation, Role of the Mediator

Initial Meeting: Clarify framework (cost, duration, goals).
Situation Assessment: Identify conflict-laden issues and each party’s perspective.
Clarification of Interests: Reveal underlying needs and motivations.
Solution Development: Jointly create and evaluate multiple options.
Agreement: Document the final mediation outcome in writing; it can become legally binding if duly formalized.

Mediators remain neutral and help both parties find a fair solution. They do not provide legal advice or make decisions themselves but guide the conversation.

9.3 Limits and Contraindications for Mediation

Violence and Power Imbalance: If there is domestic violence or intimidation, mediation often cannot ensure free, voluntary participation.
Lack of Cooperation: If one spouse refuses to negotiate in good faith, mediation is unlikely to succeed.
Urgent Need for Legal Protection: If immediate court measures are required (e.g., protective orders in domestic violence), mediation may be too slow.

9.4 Legal Effect of Mediation Agreements

Mediation results in a private settlement between the spouses. To render it enforceable, it should be reviewed by an attorney and incorporated into the divorce proceedings as a formal divorce settlement. Once approved by the court, it gains legal force.

9.5 Public Funding, Costs, and Duration

There are various funding options for family mediation in Austria, especially for individuals with limited incomes. Some provinces or social agencies offer subsidies or cover mediation costs.

Typically, family mediation takes 3–10 sessions of 1–2 hours each. The costs vary depending on the mediator’s hourly rate, which often ranges from EUR 100 to EUR 300 per hour (sometimes more), and may be split between the spouses. (Note: Mediator fees can vary widely; the text above mentions higher ranges for some professionals, but it differs regionally.)

10. International Divorces

10.1 Brussels IIa or Brussels IIb Regulation – Jurisdiction

In an increasingly globalized world, international marriages are common, and cross-border questions can arise during divorce. The Brussels IIa Regulation determines which court within the EU has jurisdiction over divorce (and custody). Generally, you can file for divorce in the EU country where the spouses last had their common habitual residence.

The Brussels IIb Regulation (Regulation (EU) 2019/1111), which partially replaces and updates Brussels IIa as of August 2022, follows similar principles but modernizes them. It aims to clarify jurisdiction swiftly and avoid parallel proceedings in multiple states.

10.2 Rome III Regulation: Applicable Law for Spouses of Different Nationalities

Private international law (PIL) answers which country’s laws apply if the spouses have different nationalities or live in different countries. Under the Rome III Regulation, spouses may, under certain conditions, choose the divorce law applicable to them (“party autonomy”).
If the spouses have made no choice, Rome III applies a hierarchy (habitual residence, nationality, etc.) to determine the applicable law.

10.3 Recognition of Foreign Divorces in Austria

Divorces decreed in an EU member state are generally recognized in other EU countries under Brussels IIa/B without needing an extra “exequatur” procedure.
For non-EU countries, a separate recognition process may be required in Austria. The Austrian authority mainly verifies whether the foreign procedure respected the fundamental principles of Austrian law (fair hearing, justice).

10.4 Cross-Border Maintenance Claims

Maintenance obligations can also be international. Various international conventions (e.g., the Hague Maintenance Convention) and EU regulations govern where you can file a maintenance claim and how judgments can be enforced across borders.

10.5 International Child Abduction (Hague Convention on Child Abduction)

A particularly serious scenario is child abduction by one parent who takes the child abroad against the other’s will. Under the Hague Convention on the Civil Aspects of International Child Abduction, the child should be returned promptly to their habitual residence, and expedited proceedings aim to prevent lasting alienation.

11. Costs and Fees

11.1 Court Fees According to Tariff Item

Filing for divorce (whether a contentious lawsuit or an amicable petition) incurs court fees set out in the Court Fees Act (GGG). For an amicable divorce, the fee is relatively low (currently around EUR 293, as of 2024, subject to change).
In a contentious divorce, fees can be based on the “amount in dispute,” which may be tied to maintenance claims or the value of assets.

11.2 Attorney Fees – The Attorney Tariff Act (RATG) vs. Flat Fees

Attorneys can bill according to the Attorney Tariff Act (RATG), which stipulates fees based on the value in dispute and the complexity of each procedural step. Alternatively, fee agreements (e.g., flat rates or hourly fees) are permissible.
Especially for amicable divorces, flat rates are frequently used to provide cost certainty. For contentious divorces, it can be harder to predict costs in advance due to the uncertain scope of litigation. Hourly rates often range between EUR 200 and EUR 400 (or more), depending on the attorney’s experience and location.

(Note: The original German text references rates up to EUR 400–800 per hour for complex family law cases. Actual rates may vary.)

11.3 Additional Costs (Experts, Witness Compensation, Interpreters)

Other costs during divorce proceedings may include:

Experts: If complex property issues or medical/psychological assessments are needed.
Witness Compensation: Reimbursement for travel expenses, and in some cases lost earnings.
Interpreters: Required if one or both spouses do not speak German.

11.4 Allocation of Costs Based on Fault?

In many civil cases, the rule is “loser pays.” However, in divorce proceedings, cost allocation can be more nuanced. Often, each party bears their own costs, especially in amicable divorces. In contentious divorces, the court can order the “unsuccessful” spouse to pay, particularly if fault is clearly established.

11.5 Legal Aid (Verfahrenshilfe)

Individuals who cannot afford litigation costs may apply for legal aid (formerly called Prozesskostenhilfe). The court reviews the applicant’s financial situation. If granted, the court may waive or cover all or part of the costs and appoint an attorney from a rotation list. The beneficiary may later be required to repay if their financial situation improves. A drawback is that the assigned attorney may not specialize in family law, as the selection is random.

11.6 Typical Cost Scenarios

Amicable Divorce with Attorney: Total costs (including court fees, attorney fees, and other expenses) can range between EUR 3,500 and EUR 10,000, depending on complexity, negotiations, and asset values. It can be more if significant property is involved.
Contentious Divorce: Costs can rapidly reach several thousand or even tens of thousands of euros if many hearings, expert evaluations, or appeals take place.

12. Psychological and Social Aspects of Divorce

12.1 Emotional Stress and Coping Strategies

Divorce is often one of life’s most stressful experiences. Emotional upheaval, fear of the future, and coping with disappointment or betrayal can take a heavy psychological toll. Helpful coping strategies include:

Talking with friends and family
Professional counseling or psychotherapy
Support groups or online forums where others share similar experiences
Exercise and creative activities to help process emotions

12.2 Impact on Children and Adolescents

Children are typically very sensitive to parental tension and suffer from the breakdown of the family structure. They may feel guilty or believe they must take sides. Studies show that constructive parental conflict resolution greatly reduces negative effects on children. Helpful measures include:

Open, age-appropriate communication with the child about the divorce
Providing a concrete vision of the future (Where will I live? How often will I see Mom/Dad?)
Possibly seeking help from family counseling centers or child psychologists

12.3 Counseling Services, Therapy Options, Conflict Management

Austria offers extensive resources:

Family counseling centers run by local authorities
Organizations like Caritas, Diakonie, Rainbows (for children in divorce situations)
Private institutes for couples therapy and family therapy

Some courts recommend that parties use such services before or during divorce to prevent escalating conflict.

12.4 Loyalty Conflicts and Parent-Child Relationships

Loyalty conflicts can be particularly painful: a child who loves both parents may feel caught in the middle. It is crucial that parents do not fight their battles at the child’s expense or force the child to “choose.” Courts and youth welfare offices strive to ensure that children are heard in an age-appropriate way and that their interests remain the top priority.

12.5 Children’s Rights and Participation in Legal Proceedings

Since the implementation of various child law reforms, children’s rights in family proceedings have been strengthened:

Children around age 10 or older are often heard directly by the court.
A child representative (Kinderbeistand) may be appointed to advocate solely for the child’s interests.
Although children do not have an absolute “veto,” their well-being remains paramount in custody and visitation rulings.

12.6 Role of External Advisers: Psychologists, Therapists, Social Workers

Various experts can be involved, either during proceedings or afterward:

Court Psychologists: May prepare an expert opinion on the child’s best interests or the parents’ capacity to raise them.
Mediators: Trained in family mediation can facilitate amicable settlements.
Social Workers: Assist with financial or housing issues and direct families to available resources.

13. After the Divorce

13.1 Finality of the Divorce Judgment

A divorce is only final once the judgment or order becomes legally binding. Amicable divorces can become final quite quickly (both spouses often waive any appeal). Contentious divorces can take longer if one party appeals or seeks a Supreme Court review.

13.2 Modification of Maintenance Agreements When Income Changes

Life circumstances evolve: a spouse may become unemployed, earn a promotion, or become unable to work due to illness. If the financial situation changes substantially, maintenance agreements can be adjusted—either by mutual agreement or by applying to court. Likewise, child support can be recalculated if the payer’s income or the child’s needs change significantly.

13.3 Changes in Custody and Contact Rights

Custody and visitation arrangements may change over time. If the custodial parent falls ill or moves away, the other parent might take over custody (fully or partially). The same goes for visitation; any modifications must be in the child’s best interests. The court can review and adjust the terms.

13.4 Remarriage and Its Impact on Maintenance

If the receiving spouse remarries or enters a cohabitation arrangement equivalent to marriage, their maintenance entitlement from the former spouse generally ceases. Conversely, if the paying spouse remarries, it might reduce his or her financial capacity, potentially affecting existing maintenance orders.

13.5 Consequences Under Inheritance Law After Divorce

Once a divorce is legally final, the ex-spouse’s statutory inheritance rights and compulsory share claims are extinguished. If the testator’s will does not specify otherwise, the ex-spouse is no longer an heir. However, complications can arise if a spouse dies before the divorce is final; specific circumstances can affect inheritance rights.

13.6 Other Formalities (Name Changes, Registration, Insurance)

Name: If you took your spouse’s surname at marriage, you may revert to your birth name after divorce. This requires a formal statement at the registry office, not an automatic effect of the divorce.
Residence Registration: Notify the authorities if you move out.
Insurance: Coverage via the spouse’s health insurance generally ends upon divorce; one may need to obtain personal insurance coverage.

14. Special Topics

14.1 Divorce in Old Age: Pension Splitting and Retirement Regulations

For marriages lasting many years where the divorce occurs shortly before or after retirement:

Pension Entitlements: To what extent did one spouse’s pension contributions also secure the other’s future?
Supplementary Benefits: A spouse who falls below the subsistence level after divorce may be entitled to state support.
Care Needs: If one spouse requires nursing care, who bears the cost?

14.2 Same-Sex Marriages and Registered Partnerships

Since 2019, same-sex couples in Austria have been eligible to marry. The option of registered partnership continues to exist and largely parallels marriage in rights and obligations, though some legal distinctions remain. Courts endeavor to treat marriage and registered partnerships equally unless specific laws say otherwise.

14.3 Divorces Involving Corporate Interests and Complex Asset Structures

Divorces can be especially complicated when one or both spouses are business owners. Key questions include:

Business Valuation: How to value a sole proprietorship or shares in a limited liability company (GmbH)? Is an expert appraisal needed?
Separation of Private and Business Property: Which assets are personal, and which belong to the business?
Continued Operation: How to ensure that the business can keep running without interference from the other spouse?

14.4 Protection from Violence and Interim Injunctions

In cases of domestic violence, specific legal protections are available:

Police Eviction: Under security police law
Restraining Orders: Under the Protection Against Violence Act
Civil Interim Injunctions: For immediate protection in cases of family violence

These measures can be ordered independently of a divorce to safeguard the threatened spouse and children.

14.5 Divorce and Tax Issues (Family Bonus, Allowances, Real Estate Gains Tax)

Tax considerations are often overlooked:

Family Bonus Plus: Usually allocated to the parent with whom the child primarily resides, although splitting is possible by mutual agreement.
Maintenance Tax Deduction: The paying parent may claim certain tax benefits for child support.
Real Estate Gains Tax: Selling the marital home may trigger taxation if it was not used as a primary residence or was only recently acquired.

14.6 Separation Agreements and Marriage Contracts (Prenuptial, Postnuptial)

Many couples sign prenuptial or postnuptial agreements that set forth terms in the event of divorce. Such agreements are generally permitted under Austrian law as long as they do not violate moral principles (gute Sitten) or go beyond legal provisions (especially regarding child protection and the economically weaker spouse).

15. Comprehensive Checklist for Those Affected

Below is a checklist for spouses contemplating or undergoing divorce.

15.1 Preparing for Separation

Self-Reflection: Is divorce really the only option? Could counseling (couples therapy, mediation) still help?
Financial Considerations: Do you have a “rainy day” fund for attorney and court fees? What are your ongoing costs post-separation?
Housing: Who moves out? Who remains in the marital home? Is temporary housing available with relatives or friends?
Children’s Well-Being: How will you inform the children about the separation? Is professional support needed?

15.2 Gathering Documents (Proof of Income, Asset Statements, etc.)

Proof of Income: Pay slips, annual salary statements, tax returns, social insurance certificates.
Asset Statements: Bank statements, savings books, securities, insurance policies, building society contracts.
Debt Statements: Loan agreements, leasing contracts, installment payments.
Housing Documents: Lease, land registry extract, mortgage contracts.
Family Book, Marriage Certificate: Official records.

15.3 Counseling Meetings and Mediation Services

Law Office: Initial consultation to clarify your legal position.
Mediation: If both spouses are open to compromise.
Family Counseling: Advice on emotional issues, child care, and state assistance.

15.4 Checklist for Court Proceedings (Documents, Deadlines, Possible Evidence)

Filing the Divorce Petition: Check the competent district court and relevant deadlines.
Proof of Separation: (At least six months for an amicable divorce).
Fault Evidence: If fault-based, line up witnesses, documents, and experts.
Court Dates: Attend punctually; missed dates can have serious legal repercussions.

15.5 Follow-Up and Ongoing Adjustments

Await Finality: Determine if appeals are filed.
Name Changes: File the appropriate declaration at the registry office if reverting to your birth name.
Maintenance Payments: Monitor timely payments.
Contact Arrangements: Respect the agreed rules, adjust if needed, and remain flexible.
Insurance and Financial Contracts: Update according to your new circumstances.

15.6 Professional Network (Attorneys, Notaries, Mediators, Therapists)

Divorce is a complex process. Build a support team:

Attorney: Specializing in family law, representing you in court.
Notary: For certifications, marriage contracts, and inheritance issues.
Mediator: Helps in negotiating amicable settlements.
Therapist/Psychologist: Emotional support.
Tax Adviser: For tax-related questions, particularly if selling property.

16. Questions and Answers (FAQ)

16.1 “How long must I be separated to get an amicable divorce?”

You must be separated for at least six months (“bed and board”). This does not necessarily mean living in separate apartments but requires clearly ending the marital cohabitation.

16.2 “What if my ex-partner refuses to pay maintenance?”

If your ex-partner fails to comply with a valid maintenance order (e.g., court ruling), you can initiate enforcement (like wage garnishment). For child maintenance, the state may provide an advance on maintenance if the obligor defaults, then recoup the amount from the debtor.

16.3 “Can I bring my children to court?”

Children may be heard in custody or contact-right cases according to their age. However, they usually are not present as bystanders during the entire hearing. Many courts have child-friendly interview rooms or schedule separate child hearings.

16.4 “Am I allowed to move abroad after the divorce?”

Generally, you are free to choose your place of residence. However, if children are involved, you must ensure the move does not violate the other parent’s contact rights or the child’s best interests. Sometimes the other parent’s consent or a court’s approval is needed.

16.5 “Do both of us need to hire a lawyer?”

For an amicable divorce, it’s possible for one or both spouses to appear without counsel. However, one lawyer cannot represent both spouses simultaneously due to conflict-of-interest rules. Many couples seek joint legal guidance for drafting an amicable agreement, though formally the lawyer can only represent one party.

16.6 “What happens to the family dog after the divorce?”

Under Austrian law, animals are legally treated as “property.” Courts increasingly recognize the emotional significance of pets, but statutes are less specific than for child custody. Generally, the pet is allocated in the property division. Arrangements for shared custody of pets are possible if the spouses agree.

17. Conclusion and Outlook

17.1 Opportunities for a New Beginning

No matter how difficult and painful a divorce is, it can also mark a new start. Many people find new direction after a failed marriage, pursue fresh goals, or reorganize their family life. Handling legal matters early and professionally can help avoid unpleasant surprises later on.

17.2 Importance of Amicable Solutions

Practical experience shows that amicable divorces often benefit all involved—particularly the children. Where feasible, minimizing confrontation and working toward mutual agreement is preferable. Mediation and carefully drafted agreements can help achieve that.

17.3 The Future of Austrian Divorce Law – Reforms and Trends

Family law in Austria is in constant evolution. Social change (patchwork families, same-sex marriages, digital communication) creates new challenges. Experts are discussing reforms in maintenance law, custody, and recognition of international divorces. The law will likely continue to adapt to societal realities.

17.4 Final Thoughts: Why Professional Help Is So Important

A divorce is not just a legal formality; it encompasses emotional, social, financial, and organizational dimensions. Without expert guidance, costly mistakes can occur that have long-term effects. Attorneys experienced in family law—whether in Vienna or elsewhere in Austria—can explain your rights, risks, and opportunities. Mediators, therapists, and other specialists can also play vital roles in achieving a sustainable solution for everyone.

18. Contact

If you have further questions about getting divorced in Austria or need individual legal advice, our law firm with an office in Vienna is at your service. Feel free to contact us by phone or email to arrange an initial consultation. Our family law experts will take the time to analyze your situation and work out the best possible strategy for you.

The Austrian Divorce Law – A Comprehensive Guide