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Prenups
Marriage contracts
Are marriage contracts possible and legally binding in Austria? What can be agreed on in a marriage contract that is applicable in Austria? How effective can a marriage contract made in Austria actually be? What limitations are there on marriage contracts made in Austria? Can marriage contracts be made after marriage? Can a marriage contract determine beforehand what is to happen to the children following divorce?
Questions such as these can be answered in broad terms as follows:
Potential spouses may agree in advance of marriage, in writing or in the form of a notarial deed, on the division of marital savings, the marital home and other marital property in the event of the marriage being dissolved (§ 97 Para. 1 Marriage Act). In addition, this is possible not only before, but also during the marriage. Naturally, it is possible that the economic consequences of a divorce for the respective spouses may change in consequence of such an agreement. The legislator has decided not to prohibit such agreements as such, but merely to prescribe a formal obligation in order to protect both the (potential) spouses against impulsive commitments; as well as their potential children.
Thus, the (potential) spouses are relatively free to determine the content of the agreement between themselves - subject to judicial review (§ 97 para. 2-4 EheG). They can, for example, agree that a certain property should not be subject to division in real terms, or they may provide for a right of seizure or an option to purchase real estate; or they may agree to waive any division of marital savings and marital property. For the particularly important matrimonial home, it can be agreed pursuant to § 82 para. 2 EheG that it should in any case be subject to division in real terms (so-called opt-in agreement) or, conversely, pursuant to § 87 para. 1 EheG that it should in any case not be subject to division in real terms (so-called opt-out agreement).
However, in order to protect the potential children, the most often most desirable determination of what would happen to the potential children in the event of a marital dispute, cannot be effectively made in Austria. For children, a case-by-case assessment is always required at the time of the dispute.
As mentioned previously, these are answers that are only generally applicable; meaning that marriage contracts are specifically agreed upon by individuals within the context of an intimate relationship, and thus, in order to be valid and effective agreements as such, may need to be professionally tailored by a competent lawyer to perfectly fit individual needs and preferences.