Fachgebiet
Family law and divorce lawyer
Divorce, custody (Obsorge) and maintenance: determined representation in Vienna and throughout Austria.
As an experienced divorce and family lawyer in Vienna, HÖLLWARTH acts for clients throughout Austria who, because of their partner's misconduct, can no longer reasonably be expected to hold on to their marriage or partnership and who are seeking a divorce or separation.
Divorce by mutual consent
For a marriage to be divorced by mutual consent, a further requirement is that the spouses have reached agreement on the essential consequences of the divorce. A written agreement must be concluded on the following points
- Division of property – allocation of debts
- Spousal maintenance
- Child maintenance
- Custody (Obsorge) and contact rights (Kontaktrecht)
HÖLLWARTH advises you on the consequences of a divorce by mutual consent, files the divorce application with the competent court and works out the divorce settlement (Scheidungsvergleich) together with you.
Divorce on grounds of fault
If your spouse has committed a serious marital offence (schwere Eheverfehlung), or has culpably broken down the marriage so deeply through dishonourable or immoral conduct that there is no prospect of the couple resuming a real married life, a divorce action must be filed.
What are the main grounds for divorce?
A marriage has irretrievably broken down where the intellectual, emotional and physical marital union has objectively come to an end, where both spouses, not just one, are aware of it, and where the marital union cannot be expected to be restored.
A serious marital offence exists, among other things, in cases of adultery, physical violence, the infliction of severe emotional suffering, leaving the marital home without reason, excessive devotion to work, repeated unfounded insults or breach of the duty to run the household jointly. The serious marital offence must be attributable to your spouse as a matter of fault.
Divorce on other grounds
The Marriage Act (Ehegesetz) allows a divorce as a result of
- conduct based on a mental disorder
- mental illness
- a contagious disease, or one that causes revulsion
The divorce is granted regardless of your spouse’s fault. As with the other forms of contested divorce, the marriage must be so deeply broken down that there is no prospect of the couple resuming a real married life.
What you need to bear in mind is that the arrangements for the remaining consequences of the divorce, namely
- Division of assets – debts – real estate
- Spousal maintenance
- Child maintenance
- Custody and contact rights
are decided in separate court proceedings in the case of a contested divorce.
As your divorce and family law lawyer, HÖLLWARTH advises and represents you where a contested divorce cannot be avoided, and files the divorce action with the court on your behalf. HÖLLWARTH also defends you against unjustified claims by your spouse.
Häufige Fragen
How does a divorce by mutual consent work?
It is the quickest and least expensive route. It requires that the spouses have lived apart for at least six months, that both spouses regard the marriage as irretrievably broken down and that a written agreement on custody (Obsorge), contact rights, maintenance and the division of property is in place. Both spouses file the application with the Bezirksgericht (district court) and appear in person.
Can I obtain a divorce without my spouse's consent?
Yes. Anyone who can point to a serious marital offence by the other spouse – such as infidelity, violence or malicious desertion – can seek a divorce on grounds of fault. Independently of that, a divorce is possible once the couple have lived apart for three years; after six years it must be granted in any event.
How long does a divorce take?
Where the spouses agree, a single court hearing is usually enough once the agreement has been negotiated – that often takes only a few weeks. A contested divorce, with witnesses and a fight over who is to blame,, by contrast, regularly runs for one to several years and becomes considerably more expensive. The difference in time is the strongest argument for reaching agreement.
How is the property divided?
What is divided is the everyday joint assets and the matrimonial savings – that is, what was used and saved jointly. As a rule, what a spouse brought into the marriage, inherited or received as a gift is excluded, as are businesses and shares in businesses. The application for division must be filed within one year of the divorce becoming final.
What happens to the matrimonial home?
It can still be included in the division even where it belongs to one spouse alone or was brought into the marriage by that spouse – namely where the other spouse or the children urgently depend on it. The court can transfer ownership or tenancy rights and impose a compensation payment in return. The question of housing often decides the whole case.
Who is awarded custody of the children?
Joint custody (Obsorge) remains the norm; the divorce does not change that automatically. What must be settled is in whose household the child is mainly cared for. If the parents cannot agree, the court decides solely on the basis of the child’s best interests – not on the basis of who is at fault for the breakdown of the marriage.
How is child maintenance calculated?
In practice by percentages of the maintenance assessment base, that is of the net income of the parent liable to pay: around 16 per cent up to the age of six, 18 per cent up to ten, 20 per cent up to fifteen and 22 per cent above that. Further maintenance obligations reduce these rates. At the upper end, the case law caps maintenance by way of a luxury limit.
Am I entitled to spousal maintenance?
That depends on the ground for the divorce. In a fault-based divorce, the predominantly guilty spouse is in principle liable for maintenance. The guide figures are around one third of the liable spouse’s net income where the other has no income of their own, otherwise around 40 per cent of the joint net income less their own income. In a divorce by mutual consent, everything can be agreed freely.
How are contact rights arranged?
Contact rights are first and foremost a right of the child to both parents, not merely a parental right. Where there is no agreement, the court sets the extent and the arrangements. Maintenance and contact are strictly separate in law: missed payments do not justify refusing contact – and conversely maintenance is not lost where contact is withheld.
What does a divorce cost?
In a divorce by mutual consent, the costs consist essentially of the court’s flat fee and the legal representation; often both sides have the agreement drawn up by one lawyer and share the expense. Contested proceedings with expert opinions and several hearings cost a multiple of that. Where income is low, Verfahrenshilfe (legal aid) may be available.
Is a marriage contract worthwhile?
Often yes, particularly where assets, a property or a business are involved. What can be settled in advance is above all the division of the matrimonial savings and of the everyday joint assets. Such agreements require a strict form – as a rule a notarial deed (Notariatsakt) – and are reviewed by the court where they place one side at an unfair disadvantage.
What rights do unmarried couples have?
Considerably less than most people assume. There is no statutory procedure for dividing property, no claim to maintenance after separation and no statutory right of inheritance. Anyone who finances a property jointly or works unpaid in their partner’s business should secure this by contract. Without an agreement, only general restitution claims remain, and these are hard to prove and often worth little.
Do I have to appear in court in person for the divorce?
In a divorce by mutual consent, yes – both spouses must file the application in person before the Bezirksgericht (district court) and confirm the breakdown of the marriage; representation is no substitute. In contested proceedings your presence as a party is likewise regularly required, because you will be examined. The hearings are not open to the public.
We married abroad — which country's law applies to our divorce?
First, two separate questions: which court has jurisdiction and which law applies. The two can diverge – an Austrian court may have to apply foreign divorce law. Within certain limits, spouses can choose the applicable law themselves. Where there is a foreign element, jurisdiction should be clarified early, because it is often whichever court is asked first that decides.