
Marriage is a contract. It is typical for contracts to bind both parties. Marriage is no different. If one party falls out of love and wants to dissolve the contract, he or she can at best convince the other party of the idea of divorce. However, divorce is often not equally attractive for both parties. In legal practice, we see from time to time that people who want to divorce are shocked when they find out that the unilateral desire for a divorce, simply because they no longer love the other person, is not enough.
If you can reach an agreement – divorce by mutual consent
In the best case scenario, it is possible to reach an agreement with your partner. Statistically speaking, most divorces in Austria are amicable. But it sounds easier than it is. What doesn’t appear in the statistics is that many divorces start out “contentious”, i.e. by means of a divorce petition, and only end “amicably” after lengthy legal disputes. For a divorce by mutual consent an agreement on the main consequences of the divorce is required. This means that you have to agree on how the marital assets should be divided and whether one of the two spouses should receive maintenance after the divorce (spousal maintenance is not the same as child maintenance).
Furthermore, if you have underage children, you need to agree on custody, contact rights and child maintenance. In addition, you must have been separated for six months and the marriage must be “irretrievably broken”. Please note: This has nothing to do with separate residences. Moving out of the marital home can constitute serious marital misconduct and is not recommended. In the case of underage children, proof of attendance at a parent counseling session must also be provided. If you have managed to reach an agreement with the other person on all these points, the way is clear for an amicable divorce. An application for an amicable divorce must then be submitted to the district court where the spouses live. The court will schedule a hearing, at which both spouses must appear in person, and can finally dissolve the marriage.
Divorce proceedings as a way out?
If you are unable to reach an agreement with your spouse, i.e. a divorce by mutual consent is not possible, the question sometimes arises: How do I get out now? If your partner has perhaps cheated on you, used violence or committed psychological terror, this is tragic on a personal level, but at least you then have the option of suing for divorce. In Austria, the principle of fault applies. If one of the spouses has committed serious marital misconduct that has led to the breakdown of the marriage, a petition for divorce can be done. A petition for divorce is therefore a “unilateral” way of initiating divorce proceedings. Unlike a divorce by mutual consent, the cooperation of the spouse is not required.
The prerequisite for this is gross misconduct on the part of the other party. If the court comes to the conclusion that one party is to blame for the breakdown of the marriage, this can have an impact on post-marital spousal support. In family law, as everywhere else, the principle applies that the person who claims something in court must also prove it. Divorce proceedings are often unpleasant for those involved because no one usually wants to divulge intimate details about the breakdown of their love relationship in court.
However, starting divorce proceedings by means of a divorce action does not necessarily mean years of emotionally and financially draining proceedings. It is still possible to switch from contested divorce proceedings to an amicable divorce and this is often successful. But an agreement requires willingness on both sides. After all, you can’t reach an agreement on your own and, unfortunately, an agreement doesn’t always work.
Action for dissolution of the domestic partnership
It can be challenging if one side wants a divorce, there is no agreement in sight and you can’t blame the partner who doesn’t want a divorce. Simply not wanting to get divorced is not enough. Here you need one thing above all: patience, for three years. Even if marriage is a contract, it should be possible to get a divorce after at least three years of domestic separation and the end of the relationship. Incidentally, in the best case scenario, you separate by mutual agreement, as there is an obligation to live together. In exceptional cases, the marriage can be maintained for a further three years (hardship clause). After six years of physical separation, however, the marriage will be divorced. This can also have consequences under maintenance law.
There are other options for dissolving a marriage besides those described above. In any case, it is worth considering all the circumstances. An amicable solution is certainly recommended in principle. However, an agreement does not have to be reached at any price. Gifts should be made from a position of strength in the context of a divorce, if at all, and not just for your own mental hygiene. Not because you are being put under pressure. Filing for divorce is not always the right way to go. Particularly in the case of a long-lasting marriage with different incomes, it may be better (also in terms of maintenance and social security law) as a blameless, abandoned person to wait until your partner takes legal action. People are often divorced for longer than they were married and, unlike marriage, divorce is usually really final.
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