Cohabiting Partners

• What happens to gifts given during a non-marital relationship when the relationship ends?
• What happens to previously shared assets when a relationship ends?
• Am I liable for my ex-partner’s debts?
• When and how could I be made liable for partner’s debts?
• What happens to mutual savings when a non-marital relationship ends?
• Is marriage an analogy to cohabitation in terms of legal entitlements?
• What cross-border issues play a role in terms of gifts, savings, and debts in a relationship?

Gifts, savings, and debts in a relationship may give rise to much uncertainty and conflict – not to mention litigation – following the end of a relationship. Questions such as the abovementioned are often asked for the first time following the end of a relationship, as they simply do not occur to many people who hopefully embark on it. Fortunately, an experienced and specialized family lawyer may be able to foresee as well as retroactively resolve many of the typical questions as exemplified by the above. For example, to answer the first question according to Austrian law: if the gift given by a life partner is gifted out of pure generosity, the giver may either later revoke the gift (in accordance with §§ 947 ff ABGB) or alternately contest the gifting contract due to a mistake of motive in accordance with § 901 ABGB.

Pertaining to debts: In principle, according to Austrian law, one is generally not liable for the debts of the other partner. However, if both partners take out a loan from the bank, they are both debtors, even if the loan is only used to purchase - for example - the car of one partner. However, the Consumer Protection Act must be observed here. If a consumer joins an obligation as co-debtor, guarantor or surety (intercession), the creditor must inform him of the debtor's financial situation if he recognises or must recognise that the debtor is unlikely to fulfil his obligation in full or at all. If this information has not been provided, the intervener (i.e. the bank) is only liable if it would have assumed its obligation despite such information (Section 25c KSchG).

To address the question about marriage: According to Austrian law, if a cohabitation leads to a marriage, the property brought into the marriage by the cohabiting partners individually or jointly retains its previous legal classification, even if it is joint property, and does not belong to the assets to be divided in the event of the dissolution of the marriage. According to the clear wording of the Austrian law, the point in time for the assessment of the legal fate of property brought into the marriage is the date of the (civil) marriage. It follows that the prevailing opinion holds that marriage law cannot simply be applied by analogy to a cohabitation as such.

Given the implications and intricacies of these issues, they can become rather complicated in practical and legal terms. Fortunately, an experienced and specialized family lawyer may be able to foresee as well as retroactively address many of the typical questions as exemplified by the above. WeI can guide you through Austrian law, navigate cross-border concerns and settle these affairs with tact and proficience. contact.

Claims

Should couples no longer live together that is, following the dissolution of the cohabitation relationship; various claims can be made by the ex-partners. Having frequently dealt with such situations in our legal practice, we have encountered many misunderstandings about such claims. The most common misunderstanding being about the legal nature of the relationship on which the claims are based, and its consequences. Despite the depth of emotions and commitment that may have played a role in the relationship, cohabitation is not marriage. Thus property claims of a previously cohabiting partner can be based on various legal grounds; but these claims cannot mirror claims that would have been made following a divorce: Austrian law does not allow for an analogous application of the statutory provisions on the division of marital property and marital savings after a divorce.

To briefly explain one of the main differences: According to Austrian law, the services and expenses provided by a cohabiting partner during the cohabitation are generally free of charge and cannot therefore be reclaimed. This applies in particular to ongoing expenses incurred by cohabitants for the shared home or for other benefits in connection with the purchase of items intended for immediate consumption. Further, such payments generally have no further-reaching purpose (i.e. extending into the distant future), but are by their nature intended for the corresponding period of the existing cohabitation and therefore have not failed to fulfil their purpose even if the cohabitation is subsequently dissolved. In contrast, the situation could be different for extraordinary benefits, for example in connection with the purchase of a home. Such benefits could be reclaimed.

Should you be wish to avoid complications arising from claims following the end of a relationship in which you have lived with your partner, by drawing up a partnership agreement; or should you be involved in any discussions about the recoverability of benefits at the end of the partnership; perhaps being already confronted with claims or having something to claim yourself, we suggest that you contact us.

Houses & Flats / Property Rights of (previously) Cohabiting Couples

• What are my rights to the propert(ies) that my partner and I are both living in?
• We built our home together, what are my rights now that we have separated?
• We bought our property together but have broken up since: what are my rights?
• When we moved in together, I paid for the renovation. Now our relationship has broken down, I’d like to know whether I can demand a compensation?
• When we lived together, I paid all our living expenses so that my partner could afford the credit on our house. Following our separation after many years of this full support, do I have any rights regarding the property that my partner now owns?
• My partner has died, we didn’t make a will. Do I have to move out of our home?
• What cross-border issues play a role regarding property rights following the dissolution of a partnership?

The law firm is well versed in the many questions asked in the aftermath of a broken relationship. Often, many challenges presented to a couple only become appallingly clear when the relationship no longer exists; and property rights of cohabiting couples is no exception. Further, there appear to be many unconsciously assumed ideas about this issue that retrospectively seen, may have influenced the expectations couples may have had precipitating cohabitation.

In Austrian law, it is recognized in both legal doctrine, as well as case law, that the joint purchase and/or construction or extension of a house by cohabiting partners could (subject to certain conditions) in effect, legally establish a partnership under civil law. In contrast, the mere cohabitation alone, i.e. the mere factual co-operation in terms of an economical or practical convenience; is not yet to be regarded as a partnership under civil law: A partnership agreement requires concrete rights and obligations and not merely de facto co-operation. The intention of the cohabiting partners must be directed towards enforceable rights and obligations of the contractual partners.

Accordingly, if there is an existing partnership under civil law, the dissolution of the partnership is an important reason for which the parties involved may be entitled to bring an action for civil partition (but not, for example, for payment of half the value of the house). However, if no civil-law partnership has been established, claims under the law of unjust enrichment could be applicable. Payments of money and labour - based on the law of unjust enrichment - are in principle generally recoverable due to the failure to fulfil the purpose as a result of the dissolution of the partnership.

In terms of cross-border implications relevant to property rights of (previously) cohabiting couples, the individual variables in the actual case must be specifically addressed in order to ensure enforceable rights and obligations. It follows that an experienced lawyer, specialized in this area, may be needed to navigate the (Austrian) law and clarify the legal aspects of property rights as well as to ensure concrete rights and obligations; preferably from the outset. Our law firm is well versed in the many questions asked and challenges faced in the aftermath of a relationship which has ceased to exist; and we would be happy to help you should need us. contact.