Blue globe showing Europe and Africa – symbolising cross-border family law matters

International Family Law

International Family Law in Vienna – Cross-Border Divorce, Custody & Support

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International family law in Vienna: blue globe symbolising cross-border divorce, custody and maintenance cases in Austria

If you are navigating a divorce, custody dispute or support matter that crosses national borders, international family law in Austria is where legal clarity begins. We advise expats, binational couples and internationally connected families on the rules that apply when more than one country is involved: Which court has jurisdiction? Which law governs your divorce or your children’s future? Will a decision be recognised abroad? These are the questions we help you answer – step by step, in English and German.

Dr. Theresa Kamp is a family law attorney admitted in Austria (Vienna Bar), recognised in Der Standard 2025 and listed by the U.S. Embassy Vienna as an English-speaking contact for family law. A significant share of our clients are US citizens and other English-speaking expats living in Vienna or elsewhere in Austria, and this page is written specifically with them in mind. The legal landscape for cross-border family matters is layered and can be counterintuitive – we work through every level to identify what actually governs your situation.

Cross-border element

When Does International Family Law Apply in Austria?

International family law applies whenever a family matter involves at least one cross-border element. That element can take many forms: one spouse holds a foreign nationality, the family’s habitual residence is or was outside Austria, the marriage was concluded abroad, assets are located in another country, or a child lives – or is at risk of being relocated – internationally.

Any one of these connecting factors can determine which court has jurisdiction to hear your case and which law it will apply. Even a couple who have lived in Vienna for years may find that their case has cross-border dimensions if one spouse holds a foreign nationality or the marriage was registered abroad. The first step is always identifying the relevant connections – and that is what we do in an initial assessment.

Does your case cross a border?

We identify the connecting factors, the competent court and the law that applies to your situation before any decisions are made.

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Order of precedence

The Hierarchy of Legal Sources: EU Regulations, Hague Conventions, IPRG

Three layers of law govern cross-border family matters in Austria, and their order of precedence determines which rules apply.

First: EU Regulations. Between EU member states, EU regulations take direct effect and override conflicting national rules. For family law, the key instruments are Brussels IIb (jurisdiction and recognition in divorce and parental responsibility), Rome III (applicable law for divorce), the EU Matrimonial Property Regulation (applicable property law) and the Maintenance Regulation (cross-border maintenance).

Second: Hague Conventions. Where a non-EU state is involved, the Hague Conventions can fill the gap where EU law does not reach. Austria has ratified the 1980 Hague Child Abduction Convention, the 1996 Hague Child Protection Convention and the 2007 Hague Maintenance Convention. Each convention applies only where both states concerned have ratified it.

Third: Austrian Private International Law Act (IPRG). The Internationales Privatrecht-Gesetz is Austria’s national conflict-of-laws statute. It applies for all questions not resolved by EU law or a Hague Convention and determines which country’s law an Austrian court will apply to a given question.

We work with all three levels in every cross-border case. The interaction between them is not always intuitive, and getting the hierarchy wrong at the outset can affect everything from which court you file in to which country’s divorce law governs your settlement.

EU law

Key EU Regulations in International Family Law

Brussels IIb – Regulation (EU) 2019/1111

Brussels IIb has been the core instrument governing jurisdiction, recognition and enforcement in matrimonial matters and parental responsibility across the EU since 1 August 2022. It replaced the earlier Brussels IIa Regulation (EC 2201/2003) and applies in all EU member states except Denmark.

For jurisdiction in divorce proceedings, Article 3 of Brussels IIb lists several alternative grounds. The most practically relevant for expats are the habitual residence of both spouses at the time the proceedings are brought, the habitual residence of one spouse if the other also habitually resides there, the habitual residence of the applicant who has resided there for at least one year before the application (or at least six months if the applicant is a national of that member state). Common nationality of both spouses is also a ground.

If both spouses are habitually resident in Vienna, an Austrian court will have jurisdiction under Brussels IIb. The regulation also governs the rules for lis pendens (where proceedings are started in two EU countries) and for the automatic recognition and enforcement of divorce decrees and parental responsibility decisions within the EU.

Parental responsibility – which in Austrian law is called Obsorge (broadly equivalent to legal custody) – is also governed by Brussels IIb. The central connecting factor for children is habitual residence: the courts of the EU member state where a child habitually resides have jurisdiction over parental responsibility matters.

Rome III – Regulation (EU) 1259/2010

Rome III determines which country’s law applies to a divorce – as distinct from which court has jurisdiction. Austria participates in Rome III through the enhanced cooperation mechanism, which means Austrian courts apply Rome III directly when deciding which law governs a divorce.

Under Article 5 of Rome III, spouses can agree to choose the law applicable to their divorce, provided that law has a genuine connection to their situation. The permitted choices are: the law of the state where the spouses are habitually resident at the time of the agreement; the law of the state of the last habitual residence, if one spouse still resides there; the law of a state of which either spouse is a national at the time of the agreement; or the law of the forum. A choice-of-law agreement must be made in writing and signed.

Where no choice is made, Article 8 of Rome III sets out a cascade of connecting factors applied in order: the law of the state of habitual residence of both spouses at the time the court is seized; failing that, the law of the last habitual residence if one spouse still resides there; failing that, the law of common nationality; and as a last resort, the law of the court seized (lex fori – Austrian law if the case is before an Austrian court).

EU Matrimonial Property Regulation – Regulation (EU) 2016/1103

The EU Matrimonial Property Regulation has applied since 29 January 2019 and governs the property regimes of international couples married after that date. It determines which country’s law applies to the division of marital property – a separate question from which law governs the divorce itself.

Austria participates in this enhanced cooperation regulation. Under Article 26, the applicable law for the matrimonial property regime is determined primarily by the spouses’ first common habitual residence after marriage; if they have none, by their common nationality at the time of marriage; and otherwise by the law with which both spouses together have the closest connection at the time of marriage. Spouses can also make a choice-of-law agreement.

Maintenance Regulation – Regulation (EC) 4/2009

The Maintenance Regulation governs jurisdiction, applicable law, recognition and enforcement for maintenance claims across the EU. It creates a streamlined system for enforcing maintenance decisions within the EU – a maintenance order issued by an Austrian court is directly enforceable in, for example, Germany or France without a separate exequatur proceeding.

The Maintenance Regulation also incorporates the 2007 Hague Maintenance Protocol as the applicable-law rule. Within the EU, maintenance obligations are generally governed by the law of the habitual residence of the maintenance creditor (the person receiving maintenance).

Cross-border custody in Austria: a baby holding an adult finger, symbolising Obsorge and Hague Convention child abduction cases

Hague Conventions

Hague Conventions: Child Abduction, Child Protection, Maintenance

1980 Hague Child Abduction Convention

The Hague Convention on the Civil Aspects of International Child Abduction (1980) is the central international instrument for dealing with cross-border child abduction. Austria ratified the convention (BGBl III 1988/512), and it applies between Austria and all other contracting states, including the United States.

The convention operates on a return mechanism: if a child is wrongfully removed from their country of habitual residence or wrongfully retained abroad, the convention obliges the courts of the country where the child has been taken to order a swift return, without adjudicating the underlying custody question. The standard for return is whether the removal or retention breached custody rights actually exercised under the law of the state of habitual residence.

A key procedural feature is the one-year rule under Article 12: if a return application is filed within one year of the wrongful removal or retention, the court must order return unless one of the narrow exceptions applies.

The exceptions to return are intentionally narrow. Under Article 13, return may be refused if the applicant was not actually exercising custody rights at the time of the removal; if there is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation; or if the child objects and has reached an age and degree of maturity at which it is appropriate to take account of the child’s views. Austrian courts apply these exceptions strictly – return is the default outcome.

The Austrian Central Authority for Hague Convention cases is the Federal Ministry of Justice (Bundesministerium für Justiz, BMJ). Proceedings are handled by the district court (Bezirksgericht) at the child’s habitual residence before the abduction.

Speed is critical. If your child has been taken abroad without your consent, or if you fear this is imminent, act immediately. Every day matters while the one-year presumption of return is running. Where the case involves another country, we coordinate with local co-counsel there.

1996 Hague Child Protection Convention

The Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (1996) is a broader instrument covering parental responsibility and child protection measures across borders. Austria is a party.

2007 Hague Maintenance Convention

The Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (2007) provides a framework for the cross-border recognition and enforcement of maintenance decisions beyond the EU context. Austria ratified the convention (BGBl III 2014/67). It operates through a central-authority mechanism between contracting states.

Has a child been taken abroad?

Time matters in cross-border custody cases. We review your options and the steps available under the Hague Convention.

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National conflict of laws

Austrian Private International Law Act (IPRG)

The Bundesgesetz über das internationale Privatrecht (IPRG, BGBl 1978/304 as amended) fills the gaps left by EU regulations and Hague Conventions.

The IPRG’s general approach is to connect each legal question to the country whose law has the closest genuine connection to the matter. For divorce (where Rome III does not apply or does not resolve the question), the key IPRG provision is § 18, which refers to the personal statute (Personalstatut) of the spouses. The personal statute is generally the law of nationality; for persons with Austrian nationality, Austrian law applies. Where spouses have different nationalities, the IPRG refers to their most recent common habitual residence or – as a fallback – the law with which both have the closest connection.

Jurisdiction

Jurisdiction for Divorce: Article 3 Brussels IIb

For EU cases, Article 3 of Brussels IIb is the operative provision. It lists the following grounds for jurisdiction in divorce proceedings:

Habitual residence of both spouses at the time the proceedings are brought.
Last habitual residence of the spouses if one still resides there.
Habitual residence of the respondent.
In cases of joint application, habitual residence of either spouse.
Habitual residence of the applicant, if they have resided there for at least one year immediately before the application.
Habitual residence of the applicant, if they have resided there for at least six months immediately before the application and are a national of that member state.
Nationality of both spouses.

You do not have to work through these criteria one after another – they are all equally valid and stand alongside one another. It is sufficient that one of the grounds applies. Where multiple courts have jurisdiction under different grounds, the lis pendens rule applies: the court second seized must stay proceedings in favour of the court first seized.

Examples from practice

Which Court, Which Law? Five Examples in Practice

In divorces with an international connection, the first question is which court has international jurisdiction and which divorce law applies. Because spouses often hold different nationalities or live in different states, several courts may have jurisdiction at once – and in that case, the court seized first generally decides. It can therefore be worth considering in which state a divorce would be more favourable for your situation.

International jurisdiction is governed by the Brussels IIb Regulation, the applicable divorce law by the Rome III Regulation. The two differ in structure: the grounds of jurisdiction in Article 3 Brussels IIb are of equal rank – a single ground is enough. Article 8 Rome III, by contrast, sets out a cascade to be checked in order; only when one step does not apply do you move to the next. The following examples illustrate how the two interact.

Example 1

Applicant has lived in Vienna for over a year

Marco is an Italian citizen and has lived in Vienna for one year and four months. His wife Anna is an Austrian citizen and still lives in Italy. The spouses have had no common habitual residence for more than a year. Marco files for divorce at the Vienna District Court.

Brussels IIb: Austrian courts have jurisdiction because Marco, as the applicant, has had his habitual residence in Austria for more than a year (Art. 3(1)(a), fifth indent, Brussels IIb).

Rome III: Art. 8(a) does not apply (no common habitual residence). Art. 8(b) does not apply, because the last common residence was more than a year ago. Art. 8(c) does not apply, as there is no common nationality. Therefore, under Art. 8(d) Rome III, Austrian law applies (lex fori).

Example 2

Austrian citizen returns home

Paul is an Austrian citizen who lived with his Spanish wife Maria in Barcelona for several years. After the separation, Paul moves back to Salzburg and files for divorce there after six months. Maria still lives in Spain.

Brussels IIb: Austrian courts have jurisdiction – for a national, a habitual residence of six months before filing is sufficient.

Rome III: Art. 8(a) does not apply (no common habitual residence). Art. 8(b) applies, because the last common residence in Spain was less than a year ago and Maria still lives there. The Austrian courts therefore apply Spanish divorce law.

Example 3

Two German citizens living in Austria

Max and Laura are both German nationals and have lived together in Graz for five years. Their marriage breaks down.

Brussels IIb: Both Austrian and German courts can have jurisdiction – Austria, because both have their habitual residence here; Germany, because both hold German nationality. If Max files first in Austria, the Austrian court generally decides; if Laura files first in Germany, the German court does (priority principle).

Rome III: Art. 8(a) already applies, because both have their common habitual residence in Austria. Austrian law therefore applies.

Example 4

Last common residence in Austria

Eva (Austrian) and Louis (French) lived together in Innsbruck. After separating, Louis moves to France and Eva stays in Austria. Eight months later, Eva files for divorce.

Brussels IIb: Austrian courts have jurisdiction, because Austria was the last common habitual residence and Eva still lives there.

Rome III: Art. 8(a) no longer applies. Art. 8(b) applies, because the last common residence was less than a year ago and Eva still lives there. Austrian divorce law therefore applies.

Example 5

Same nationality, different country

Thomas and Anna are both Austrian citizens. They lived together in Munich for several years. Two years ago they separated; Thomas moved to Vienna and has lived there since, while Anna still lives in Munich. Thomas files for divorce before the competent Austrian court.

Brussels IIb: Austrian courts have jurisdiction, as Thomas is an Austrian citizen and has had his habitual residence in Austria for more than six months (Art. 3 Brussels IIb). German courts may also have jurisdiction; where several courts are competent, the court seized first generally decides.

Rome III: Art. 8(a) does not apply (no common habitual residence). Art. 8(b) does not apply, because the last common residence in Germany was more than a year ago. Art. 8(c) applies, as both are Austrian citizens. Austrian divorce law therefore applies.

Typical constellations

Typical Case Constellations

Divorce in Vienna with an International Element

A very common constellation: one spouse holds a foreign nationality, the other may be Austrian or an EU national, and both have been living in Austria. They want to divorce in Vienna. If both spouses are habitually resident in Vienna, Austrian courts have international jurisdiction.

Applicable law: Rome III applies in Austrian courts as the choice-of-law rule. Austrian courts can apply a law chosen by the spouses or, failing a choice, apply the Rome III cascade. In a case with habitual residence in Vienna, this often results in the application of Austrian divorce law. Where a non-EU country is involved, we coordinate the Austrian side of the proceedings with your counsel there.

US Prenuptial Agreement in Austria – Does It Apply?

Many expat clients have previously signed a prenuptial agreement abroad. The question of whether such an agreement will be recognised and applied by an Austrian court arises frequently.

Under Austrian law, a prenuptial agreement (Ehevertrag) must be executed in the form of a notarial deed (Notariatsakt) to be valid regarding property matters and maintenance. This is a strict formal requirement. An Austrian court reviewing a foreign prenup will assess whether the agreement is valid under the law that governs it, and then whether applying it would violate Austrian public policy (ordre public), including the formal requirements and the substantive fairness standards under Austrian law. An agreement that entirely excludes maintenance in circumstances of severe economic hardship may be refused recognition on public policy grounds. See the prenuptial agreement page for more on the Austrian form requirements.

Child Abduction and the 1980 Hague Convention

Where a child habitually resident in Austria is wrongfully removed abroad by one parent without the other’s consent – or the reverse – the 1980 Hague Child Abduction Convention provides the framework between Austria and all other contracting states. The left-behind parent files an application with the Austrian Central Authority (the Federal Ministry of Justice, BMJ), which forwards it to the Central Authority of the other country.

The application must document that the removal breached custody rights under the law of the child’s habitual residence, that those rights were actually being exercised at the time of removal, and where the child is located. The one-year period for the strongest presumption of return runs from the date of wrongful removal or retention – not from the date the application is filed. Every day of delay matters. In the destination country, we coordinate with local co-counsel.

EU Citizens in Austria – Intra-EU Cases

For cases involving EU citizens and EU member states, the picture is more structured. Brussels IIb governs both jurisdiction and the circulation of decisions within the EU. A divorce decree or parental responsibility decision issued by an Austrian court is recognised automatically in other EU member states (with limited exceptions for public policy or lack of proper service). Rome III applies to determine the law governing the divorce – EU couples in Austria can choose the applicable law, and failing a choice, the Rome III cascade typically leads to the law of common habitual residence (Austrian law if they live in Vienna).

Recognition and enforcement

Recognition and Enforcement of Decisions Within the EU

Within the EU, Brussels IIb provides for largely automatic recognition of divorce decrees and parental responsibility decisions. A divorce decree issued by an Austrian court is recognised in other EU member states without any special procedure being required; grounds for refusing recognition are narrow and exceptional. Enforcement of parental responsibility decisions (including Kontaktrecht – contact rights) within the EU follows a structured process under Brussels IIb, with specific rules for the enforcement of access rights and the return of children.

Prenuptial agreements

Cross-Border Prenuptial Agreements

Prenuptial agreements (Eheverträge) with cross-border elements raise both applicable-law and formal-validity questions. For couples who married after 29 January 2019 where EU law applies, the EU Matrimonial Property Regulation governs the choice of applicable property law; spouses can choose the applicable law from a limited set of permitted laws, in writing.

A foreign-style prenup does not automatically meet Austrian form requirements. For expat clients who plan to marry in Austria, who hold significant assets in Austria, or who have an existing foreign prenup, the practical recommendation is to review the existing agreement and assess whether re-execution as an Austrian notarial deed or another measure is advisable.

More on this: prenuptial agreement in Austria – form, clauses and cross-border aspects

For US citizens in Austria

US-Expat Specifics

If you are a US citizen living in Vienna or elsewhere in Austria, here are the key points for your situation:

EU regulations apply to your Austrian proceedings – with limits. Brussels IIb governs jurisdiction and recognition for your divorce and parental responsibility matters in the EU, and Rome III applies in Austrian courts to determine which law governs your divorce.
Hague Conventions provide the bridge to non-EU states. The 1980 Hague Child Abduction Convention and the 2007 Hague Maintenance Convention both apply between Austria and the United States.
Language is no barrier. Dr. Theresa Kamp is listed by the U.S. Embassy Vienna as an English-speaking contact for family law, and we advise you in English on all aspects of Austrian family law as they apply to your situation.
Where US law is involved, we coordinate directly with your US counsel so the Austrian and US sides of your case stay aligned.

Checklist

What to Prepare for an Initial Assessment

For an efficient first consultation on an international family law matter, it helps to gather:

Passports and nationality documents for both spouses and any children
A timeline of where each family member has lived, with approximate dates
Marriage certificate (with certified translations if issued in a foreign language)
Any existing court orders, parental responsibility agreements or prenuptial agreements
Information on the children’s current residence, schooling and any travel restrictions in place
A rough overview of where your assets are located (countries, approximate values, type of asset)
Any correspondence from foreign courts, central authorities or lawyers in the other country

This allows us to identify the applicable rules, map the relevant jurisdictions and courts, and outline your options in the first meeting.

Frequently asked questions

Frequently Asked Questions

Which court has jurisdiction for an international divorce in Austria?

If both spouses are habitually resident in Austria, Austrian courts have jurisdiction. For EU constellations, this is governed by Article 3 of Brussels IIb. Where multiple EU courts could have jurisdiction, the first court properly seized retains the case.

Can we choose the law that applies to our divorce?

Yes. Under Rome III, spouses can agree in writing to choose the law governing their divorce from a set of laws with a genuine connection to their situation – the law of habitual residence, the law of a common nationality, or the law of the forum.

Does Austria participate in Rome III?

Yes. Austria participates in Rome III through the enhanced cooperation mechanism. Austrian courts apply Rome III’s choice-of-law rules directly in divorce proceedings; where no choice has been made, they apply the Rome III cascade to identify the applicable divorce law.

Within the EU, how does maintenance enforcement work?

For other EU member states, the Maintenance Regulation (EC) 4/2009 provides a direct enforcement mechanism. An Austrian maintenance order is directly enforceable in other EU member states without a separate recognition procedure.

Is my foreign prenuptial agreement valid in Austria?

Austrian courts will assess the validity of the agreement under the law governing it, and whether applying it would be compatible with Austrian public policy. Legal review – and potentially re-execution in Austrian form – is strongly recommended.

Can I have a bilingual consultation?

Yes. We advise and represent clients in both German and English. For international family law matters involving expat clients, we work in English throughout – documents, correspondence and court submissions can be prepared bilingually where needed.

What is “Kontaktrecht” – is it the same as visitation rights?

Kontaktrecht is the Austrian term for the right of a parent without sole custody to have personal contact with their child. It is functionally equivalent to what is often called visitation rights or parenting time. In international cases, Kontaktrecht arrangements may need to be coordinated with the rules of another country where the child also spends time.

What does “Obsorge” mean – is it the same as legal custody?

Obsorge is the Austrian term for parental responsibility, broadly equivalent to legal custody. It encompasses the right and obligation to care for a child’s person and assets, to represent the child, and to make decisions about their upbringing, education, residence and medical care. Obsorge can be held jointly by both parents (gemeinsame Obsorge, the default in Austria) or by one parent alone (alleinige Obsorge, granted only in specific circumstances).

About the attorney

About Dr. Theresa Kamp

Dr. Theresa Kamp is a family law attorney admitted in Austria (Vienna Bar), holding an LL.M. with a focus on contract law with an international dimension. She advises and represents clients in German and English, and appears on the U.S. Embassy Vienna’s attorney list as an English-speaking contact for family law matters. Her practice includes divorce proceedings, parental responsibility and contact-rights disputes, cross-border child abduction cases under the Hague Convention, international maintenance enforcement, and advice to binational couples on prenuptial agreements and matrimonial property regimes.

Your next step: arrange a confidential initial assessment. We will map the applicable rules, identify your options and outline concrete next steps – in English and German, no commitment required.