When people are in love, they are often generous. Nobody likes to think about what will happen when the relationship comes to an end. Hashtags such as “tradwife” or “stayathomegirlfriend” are trending on social networks. It’s about traditional role models or that one person is responsible for the work outside of the house while the second person is a homemaker. But what happens when the romance wears off and the partner’s generosity suddenly has limits and at some point it may even be a question of separation or divorce? Who has access to the supposedly joint money?
Who owns what, separation of property or something like that?
As a first step, it is important to determine whether there is a marriage or “only” a relationship. For #styathomegirlfriends in particular, a separation in Austria would not be profitable, at least not financially. In a cohabitation or relationship, you have neither a maintenance claim against the other nor do you accumulate joint assets. No matter how long you have been in a relationship. It’s different in a marriage. During marriage, the so-called separation of property applies. This means that if one person has a savings account and diligently puts money aside each month, the money only belongs to the saver during the marriage. During the marriage, each spouse is therefore the owner of their own property and can basically do what they want with their own money. However, this changes around the dissolution of a marriage. When it comes to divorce, the other spouse is suddenly entitled to half of the money in the savings account. This does not always bring joy and often causes great surprise. In most cases, people have the feeling that it is only their own money if savings have been accumulated with their own income (earned during the marriage). The willingness to share their “own” money with their divorcing better half is sometimes endless. This does not take into account the fact that during the marriage, money is managed jointly.
What should be divided in a divorce?
In the context of a divorce, marital property and marital savings must be divided. Marital assets are things that were used by both spouses during the marriage (e.g. furniture and the marital home). Marital savings are assets that have been accumulated by the spouses during the marriage (e.g. real estate, cash, savings, securities, etc.). In short, marital assets are to be divided. In other words, what was “created” together during the marriage should be divided. “Jointly created” should not be taken too literally. It does not (or no longer) matter who is in the land register or whether savings were accumulated solely and exclusively from the salary of one spouse. If it was saved with money earned during the marriage, it must be divided. Assets brought into the marriage are not to be divided. Assets brought into the marriage are, for example, things that a spouse already had before the marriage or a savings account. Things that were inherited (even during the marriage) or received as a gift from a third party are also not to be divided.
Property that serves the personal use or professional practice of a partner or belongs to a company is also excluded from division. Companies as such and shares in companies (except for mere investments) are also not to be divided.
How do you get the money?
If there is a divorce by mutual consent, the spouses must present the court an agreement on how the marital assets should be divided. An amicable divorce is quick and relatively inexpensive, but you have to overcome the hurdle that an agreement is required. If there is no agreement, an amicable divorce cannot succeed either. In this case, the marriage must first be divorced by means of (contested) divorce proceedings. Only then, i.e. after the divorce has already taken place, the so-called division of assets proceedings take place, where the issue is, who should receive what. Within one year of the divorce, an application for division can be submitted to the competent district court. Among other things, it will depend on whether you can show the court what assets you have (if an agreement cannot be reached in court). However, the court is also obliged ex officio to determine the facts that are essential for the decision.
If a court has to make a decision, there are various things that are taken into account. These include the fact that the divorced couple’s lives should be kept as separate as possible after a divorce or, in the best case scenario, that both parties should retain their previous livelihoods and the start of the new phase of their lives should be made easier.
Unless there is a gross imbalance, the courts normally assume that the spouses’ contributions are of equal value and divide the assets 50:50.
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