Getting a Divorce in Austria: Full Guidelines

Getting a Divorce in Austria: Full Guidelines

Everything You Need to Know About Getting a Divorce in Austria

The divorce process in Austria can easily get messy if you’re not properly prepared. Multiple factors can come in the way, such as the grounds for divorce, its laws, and even the type of divorce you will get.

Here’s a guide with all the information you’ll need to help you go through the process without any trouble.

Photo by Hutomo Abrianto on Unsplash

Grounds for Divorce

According to the Austrian Marriage Act of 1961, the laws regarding divorce in Austria come from Section 46, which states that the couple must not only be married for more than six months, but there are certain grounds for the divorce that they would need to meet before they can file for divorce.

These grounds include:

  1. Divorce by consent;
  2. At-fault divorce;
  3. Separation for at least three years before the divorce procedure.

Divorce by consent is essentially a mutual and happy divorce where both parties consent to it, while the at-fault divorce is one where the marriage has been broken down beyond repair. This could be anything ranging from extramarital affairs, abuse, or even mental illness that could harm the marriage.

However, if the couple has been living apart for over three years, there is no need to provide any reason or excuse for dissolving the marriage.

Divorce Process

Consensual Divorce

If you wish to get a consensual divorce, here are certain requirements that you may need to agree on:

  1. Custody of a child, if there are any
  2. Co-parenting of any children
  3. The division of assets and property
  4. Spousal Support

Procedure

If you wish to appeal for divorce, it must be done before the divorce decree is finalized and the stamp is confirmed on the copy. Once that is done, there is no way for you to challenge the divorce legally.

Certain documents are listed below that would be needed to finalize the divorce:

  1. Marriage certificate
  2. ID
  3. Children’s birth certificate, if any
  4. Confirmation of the message
  5. Proof of the citizenship of the spouse

Disputed Divorce

Procedure

The procedure for this divorce is almost the same as a consensual divorce. However, the difference occurs due to the dispute between the two spouses causing the divorce. Initially, the court may offer counseling services and such to try and reconcile the marriage. However, after four weeks of announcing the judgment, the divorce will be finalized if there is no appeal.

Child Custody and Support

Child custody and child support are very important to discuss if you plan on divorce. There are multiple ways a parent can go with it due to the laws of the 2001 Act Amending the Act of Children, like

Custody of both parents

This is the most common route the divorce court might take if no other appeal is made or the child was born before the couple married. In this case, child custody goes to both parents, who must also fulfill their duty regarding child support.

Custody with one parent

However, if there is an appeal made by a parent wanting to claim custody, the court does consider that. If no such agreement is made between the parents, the divorce court decides which parent seems more capable of taking care of the child and gives them custody for six months while the other parent is given enough means for contact during this time. After these six months, the court determines the child custody decision as they see fit.

The right of contact of a parent

The right of contact gives every parent the right to meet with their child and stay in contact even after the divorce. This is done with mutual agreement between both parents and the child.

The role of a step-parent in this situation 

Anyone of legal age who lives with the parent must ensure the child’s well-being. This includes anyone from a family member to a step-parent.

If the parent is unavailable and there needs to be an everyday life decision that won’t affect the child’s development, the step-parent is legally required to decide for the child keeping in mind their well-being and safety.  If necessary, the step-parent can also sign school slips and such.

Spousal Support

When getting a divorce, one of the primary things that need to be sorted out is who will get what spousal support. In the Austrian court, if both spouses are to blame or are in a no-fault divorce, the one earning more is required to support the other spouse. In a guilty divorce, where one spouse is at-faultthat spouse must provide reasonable spousal support, meaning enough maintenance to cover regular expenses.

Property Divison

Property division during a divorce involves every property owned by the two spouses. These include assets, property, bank accounts, and everything. In most cases, property used by only one spouse, like jewelry, art, and such, goes to the one who uses it. If there is a disagreement between the two spouses regarding who gets what, which in most cases regards bigger things like cars, property, and estates, the court intervenes and helps solve it. The court will divide marital savings and assets equally between the two, excluding anything that the spouse brought into the marriage, inherited, or was gifted during their marriage period.

How long does the entire divorce process take?

If the divorce is consensual, the average time it would take to be finalized is around two to four weeks. Still, if the divorce is disputed, the time frame could be one to three years.

Alternatives to Getting a Divorce

A divorce requires a lot of legal power and effort and usually is the most popular way to end a marriage. Still, options exist for those who don’t want to go about it through a traditional legal technique. You can either annul your marriage in Austria or get a mediation.

To annul a marriage refers to a way to make the marriage void like it never existed in the first place. To do this, there are certain requirements you have to meet or should be present in your marriage to make it void. These include:

  1. Being related to each other by blood;
  2. The marriage being illegal;
  3. The only reason for marriage was Austrian citizenship;
  4. One spouse was either mentally ill or unconscious during the wedding.

However, another alternative to getting a divorce is to get mediation for it. This happens when the two spouses can not agree on the terms set for the divorce by each other. So, while the two spouses get a separate lawyer, a third-party lawyer mediates between them to decide on decisions that are the best choice for them.

Can I Stay in Austria After Divorce?

Since the circumstances change, the permit held by you (issued as a spouse) up until the divorce becomes void. Depending on how your life developed after, you can apply for a different permit, for instance, based on remarriage, study, or a job.

When deciding whether to allow a person to remain in Austria, authorities consider the situation of people with families and an advanced level of integration into Austrian society.

If the couple decides to get divorced, the spouse, not Austrian, might lose their residential title unless they fulfill the general requirements for a residential title. These requirements include having lived in Austria for at least five years, legal living accommodation, health insurance coverage in case of any risks, and if they have the means to continue living in Austria, i.e., a job. If they’ve stayed for less than five years, a work visa would be the best option for them at the moment.

However, to acquire citizenship, the individual must have stayed in Austria continuously for ten years with no legal issues, including five years of residence with a permanent residence permit.

What would apply if I am not married but have a registered partnership (“Eingetragene Partnerschaft”)?

The same rules apply irrespective of whether you are in a marriage or a registered partnership. Austria considers these two forms of partnership between spouses as equal.

Finding a Divorce Lawyer

If the divorce is consensual and no children are involved, or any assets must be divided amongst the couple, a divorce lawyer isn’t necessary. However, considering the emotional aspect of the process and the issues that property complications can bring, some people might not be able to manage the divorce alone. Those people must find a good divorce lawyer to help them easily navigate the process. The lawyer should know all your rights and help you protect them while getting you your fair share after the divorce.

To find a well-respected lawyer, you need to specifically look for one who specializes in family and divorce, along with someone with enough experience in this field. You could also check the Austrian Bar Association for a list of eligible lawyers to help you through this process.

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