The division of marital assets in Austria
(For general information on Austrian divorce law, click here.)
A very relevant aspect of any marriage is what both spouses bring into it in the form of things or “assets”, and also acquire over the course of their union. This may include real estate, investments, savings, as well as wages and other income. If a marriage ends, the division of these assets – in other words how to split these between the spouses – can become a major point of contention.
In its Marriage Act (Ehegesetz; EheG), Austrian law provides specific rules for this situation, i.e. the post-marital division of assets. This post offers a general overview of these rules.
The division of assets during the marriage
Austrian marital law uses the default principle of separation of assets (Gütertrennung). This means that the assets that both spouses bring into a marriage will remain the property of the respective spouse alone. They are not considered marital assets, and as such would not be subject to a post-marital division. This means for instance that if one spouse owns an apartment before the marriage, this will remain his or hers in the event of a divorce (but important exceptions may apply, see below). This principle of course also applies to any debts and liabilities that the spouses may have.
In general, it can be said that assets that spouses acquire in the following ways are not considered marital assets:
assets that are brought into the marriage (i.e. owned before the marriage)
assets that a spouse receives as a gift from a third party
assets that a spouse inherits
As a result, these are – in principle – not subject to a post-marital division. This also applies to objects that a spouse uses for his or her profession, business property or personal objects.
Referring to these rules as a principle of separation of assets can however be somewhat misleading: it should be noted that any assets that the spouses acquire during the marriage in other ways in principle will be considered marital assets, which as a result would be subject to a post-marital division. This includes the income (e.g. monthly wages) that both spouses have. In other words, in spite of its name, this principle will in practice often mean that most assets that the spouses acquire during their marriage in fact would be included in any discussion about a post-marital division.
Prenuptial agreements
Alternative arrangements are possible. As in other countries, this can be done by concluding a prenuptial agreement. This may be especially advisable in situations where at least one of the spouses owns a considerable amount of assets or is set to be generating a substantial amount of income during the marriage. In these situations, a prenuptial agreement could offer clarity about what belongs to whom, or how assets should be divided if the marriage ends.
In addition, prenuptial agreements may already contain provisions about spouses´relations after a divorce, for instance in relation to alimony.
Please note that, under Austrian law, not everything can be included in a prenuptial agreement. As an example, a stipulation that a spouse must produce an heir would not be permissible. In general, provisions that would put a spouse at a major disadvantage (gröblich benachteiligend) may also be considered problematic and inadmissible.
Please note that in Austria, in order to be valid, a prenuptial agreement would have to be concluded in the form of a notarial deed.
Post-marital division proceedings: the Aufteilungsverfahren
After the end of a marriage, it is in principle the spouses themselves who decide on how to divide all marital assets between themselves. An agreement that the spouses have voluntarily concluded with one another is – at least as far as this topic is concerned – not in itself subject to review by a court.
It is in situations where the spouses cannot come to an agreement that the Austrian rules on the division of assets become relevant. For these cases, the Austrian legislator has devised special proceedings: the so-called Aufteilungsverfahren (proceedings on the division of marital assets; §§ 81 ff EheG).
These are independent proceedings separate from divorce or other proceedings. This means that they are not part of contested divorce proceedings themselves: here, a judge would only decide whether to end a marriage by divorce, and who might be at fault for the divorce. It is only after a marriage has ended that division proceedings can be initiated.
These proceedings cannot be initiated indefinitely. An appropriate request must be filed within one year after a court has established the end of the marriage.
General rules and principles for the division of assets
If one spouse – or now rather a party – initiates these proceedings, a court will typically order both parties to submit written preparatory briefs containing each parties´respective arguments and organize a preliminary hearing in order to determine whether some sort of agreement might be possible after all. If this is not the case, a roadmap will be laid out for the rest of the proceedings.
The court would then have two primary tasks:
to determine which marital assets the parties have acquired during their marriage; and
how to divide these between the parties
The first task may involve a considerable amount of fact finding, to which both parties would have to contribute. A party´s refusal to provide documentation or attempt to obfuscate evidence may work against him or her. This task may also necessitate considerable legal analysis: parties can disagree vehemently on whether an asset is in fact a marital asset and as such subject to division.
The question of whether something is a marital asset can be complicated especially in cases where the asset technically belongs only to one party because it was, for instance, brought into the marriage, but where the other party made a significant contribution to the growth of the value of the asset. Examples of this include situations where one of the parties owned a house prior to the marriage, which during the marriage was renovated with the help of the other party, or where a party contributes to mortgage payments for an apartment belonging to the other party.
Similarly, questions can arise with regard to assets of a more financial nature, such as life insurances, pension schemes, severance payments, company shares, etc.
The marital home, too, may be a point of contention. Here, it is possible to deviate from the general rules and include it in the division regardless of its status if one of the spouses and/or children has an urgent need for the home.
In carrying out its second task, the actual division of marital assets, the court operates on basis of a principle of equity (Billigkeit). It will in other words have to divide the assets in a manner that is fair. What it considers fair will depend on both parties´ contributions to the marriage, financial but also in other ways, for instance by foregoing a career in order to take care of the household and any children. In practice, 50:50 splits are common.
Court decisions can be appealed. Once they have become final, they can be used as a basis for enforcement proceedings.
International aspects
International marriages, i.e. where the spouses live abroad or where at least one spouse is not an Austrian national, may – depending on the circumstances – not be subject to the Austrian rules. In addition, the spouses can specifically choose to have the law of a specific country apply to their situation, insofar as this does not conflict with certain fundamental rules of the country in which they currently reside (so-called ordre public). As an example, a Spanish-Swedish couple living in Austria could make a choice for Spanish, Swedish or Austrian law. The legal basis is provided by the European regulation on matrimonial property regimes (Regulation (EU) No. 2016/1103).
A note on registered partnerships
In 2019, Austria opened marriage to same-sex couples. In addition, registered partnerships – which were previously only allowed for these couples – also became available as an option for heterosexual couples. Registered partnerships are largely equal to marriages and differ only in minor points.
The dissolution of a registered partnership may also necessitate the division of assets that a couple accumulated during their partnership. For this, it is not the rules of the Marriage Act (EheG), but those of the Registered Partnership Act (Eingetragene Partnerschaft-Gesetz; EPG) which apply. These can be found in §§ 24 ff EPG. It can be said, however, that these rules are practically identical to the ones for marriages.
Legal assistance in Austria
I provide legal counsel and representation in divorce and division proceedings in Austria, of course fully in English. Feel free to contact me by using the form below, by sending an e-mail to office@vastenburg.at, or by calling me at 0043 6804446590.
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