In Austria, if you do not agree on a divorce by mutual consent, it can still depend in court on who did what wrong to the other person and when. In other words, the principle of fault still applies in Austria. If a court finds that one spouse is solely or predominantly to blame for the breakdown of the marriage, this can have financial consequences. Particularly if there is a large difference in income between the spouses, this can have an impact on any post-marital maintenance. However, for a court to find that one party is predominantly at fault, the fault of one spouse must be considerably more serious than that of the other and the latter’s lesser fault must almost completely fade into the background.
What can constitute marital misconduct?
Marital misconduct is an act or omission that is contrary to the nature and obligations of marriage. Marital misconduct is considered serious if, taking into account the couple’s living conditions and environment, it would lead to complete estrangement, even in the case of a person who is basically benevolent. The marital duties that are particularly relevant in this context are the duty of comprehensive marital cohabitation, the duty of fidelity, the duty to treat each other decently, the duty to live together and the duty to provide assistance. The law lists the infliction of physical violence and serious emotional distress as well as adultery as examples of serious marital misconduct. Violence in any form is prohibited in the family; it does not depend on whether a certain level of severity is reached.
If one spouse has broken up the marriage so deeply as a result of serious marital misconduct that the restoration of a cohabitation in keeping with the nature of marriage cannot be expected, the other spouse has the option of suing for divorce. On the one hand, therefore, there must be serious marital misconduct that has been culpably committed and, on the other hand, the marriage must have broken down. The serious marital misconduct must be the reason why the marriage is at an end.
What about excessive alcohol consumption?
According to established case law (RS0056311), alcohol abuse generally constitutes marital misconduct. If a person is drunk several times a week, it can be assumed that the person is abusing alcohol. It is interesting to note that the excessive consumption of alcohol is sufficient to qualify as marital misconduct. To put it bluntly: regardless of whether you behave well or badly when intoxicated, “getting drunk” is marital misconduct. In other words, it is not necessary to misbehave, beat up the dog or insult your husband while drunk for it to be considered marital misconduct. The mere fact that you drink too much already constitutes marital misconduct. As a spouse, you do not have to put up with the other person turning to alcohol excessively.
Especially when it comes to alcohol, an assessment can be complex and difficult if alcohol abuse is linked to addiction. This is because it is debatable to what extent someone can be blamed for an addiction. In any case, excessive alcohol consumption will be reproachable if it occurs without an addiction issue. However, even if someone is possibly addicted and the alcohol abuse is therefore not fully reproachable, the slide into addiction, relapses or unwillingness to undergo treatment can be assessed when weighing up fault in the divorce (5 Ob 140/17z).
The argument that the other spouse had already known before the marriage that people like to drink too much was also not well received by the Supreme Court (OGH 25.5.2020, 1 Ob 69/20h). In this particular case, the husband drank three times, sometimes up to five times a week – up to five, sometimes even up to ten beers as well as large quantities of schnapps. There were frequent arguments about this with the wife, who disliked it. The wife repeatedly demanded that the alcohol consumption be restricted. The husband argued in court that he was not addicted to alcohol and that his alcohol consumption had no negative economic or social impact. He had continued to work extremely hard and had earned his own home. He also stated that his wife had already known about his alcohol consumption at the time of the marriage. Therefore, she could not blame him for his alcohol consumption later. However, the Supreme Court did not accept this argument and stated that each spouse could expect the other spouse to suppress as far as possible any tendencies that could disrupt a prosperous life together.
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