Disputed divorce

Disputed / contested divorce

What will happen if your spouse will not agree to a divorce? Can you force your spouse to divorce? How do Austrian courts deal with disputed divorces? What court proceedings are involved when spouses can’t agree to divorce? Are there different kinds of divorce disputes according to Austrian law? And what about culpability in divorce proceedings?

If you and your spouse disagree about the divorce - either about the fact of the divorce itself or about the consequences of the divorce - the marriage can only be legally dissolved by means of divorce proceedings in court. In such divorce proceedings in Austria, you will have to face your spouse as either the plaintiff or defendant as these roles are defined by the the Code of Civil Procedure. Furthermore, Austrian law essentially distinguishes between two types of "contested" divorce. The first is divorce on the grounds of culpability/fault; and the second is a so-called "separation divorce" or, in other words a divorce which is due to the long-term dissolution of the domestic partnership.

In the first case of disputed divorce, that is in culpability divorce proceedings, the court must examine which spouse is to blame for the breakdown of the marriage. Consequently, the claim for maintenance is linked to the finding of fault. As a rule, this is the actual reason why who is at fault for the breakdown of the marriage is often vehemently disputed. The division of property, on the other hand, is ideally generally independent of fault. In practice, however, the courts usually regularly grant the "innocent" party the option of remaining in the marital home and of making a compensation payment, or moving out themselves and opting for compensation instead.

Alternatively, the second kind of disputed divorce, which is a divorce effective not based on fault, requires the dissolution of the spouses' domestic partnership (separation) for at least three years. In this case, the spouse who may be ultimately responsible for the breakdown of the marriage can therefore also request a divorce three years after separation. However, in contrast, the defendant spouse who may be blameless for the breakdown of the marriage, is free to apply for a ruling that the plaintiff is culpable for the breakdown of the marriage. Should this be so, the Austrian law on maintenance would provide for a significant improvement in the position of the "blameless" spouse upon divorce: he or she is thus entitled to maintenance as if the marriage had been maintained in addition to being able to legally retain the full widow(er)'s pension entitlement. In this case it makes sense not to sue for divorce immediately!

The process of a contested divorce in Austria can be briefly summarized as follows: the divorce petition is followed by an initial court hearing at which the court is obliged to (briefly) work towards reconciliation and at which the possibility of mediation or an amicable divorce is discussed. If this is not successful, further hearings will follow at which both spouses will testify as parties and witnesses will also be heard. It goes without saying that your own testimony is of particular importance for the court's decision - this requires good preparation, and an even better lawyer!

Case Law