Just friends (a quick excursion into Austrian divorce law)

(Update: for a general overview of Austrian divorce law, click here.)

If you want to get divorced in Austria, arranging a divorce by mutual consent (einvernehmliche Scheidung) is typically the best way to go about it. It is the fastest divorce option, and the one that is the least taxing on the participants´ nerves and finances. There are also other options. One of those is the divorce after a prolonged separation, another one is the fault-based divorce in its purest form, the so-called Verschuldensscheidung.

As its name suggests, the fault-based divorce requires at least one party at fault, i.e. one that has committed an act constituting a ground for divorce (a schwere Eheverfehlung). This in turn needs to have led to an irreparable breakdown of the marriage. The law only explicitly mentions two grounds for divorce: adultery and domestic abuse. Caselaw has developed an extensive catalogue of other types of behavior, ranging from unrestrained flatulence to – more seriously – excessive jealousy, prolonged silent treatments, abandonment and intense platonic relations with members of the opposite sex.

Yes, that means that a friendship with a member of the opposite sex may constitute a ground for divorce. There are some caveats to this, however. To begin with, this can only be the case if the other spouse clearly takes issue with the friendship or if the friendship is kept secret from the other spouse “in spite of its uncommon intensity”.

A recent decision of the Austrian Supreme Court (Oberste Gerichtshof; OGH) has shed some more light on the circumstances where “just friends” can really still be taken to mean “just friends”.

The case that led to the decision is not pretty, which is why I am simply going to link to it here. In summary, both parties spared no effort in airing each other´s dirty laundry. Something that apparently bothered the wife is that the husband developed a friendship with a female friend. He started spending time with her without informing his wife and helped her out around the house on two occasions. They went for dinners and took pictures of each other. It was apparently alleged that they went on a trip to Venice together, but this could not be verified. It could also not be proven that they had been intimate.

This went too far for the courts in first and second instance. The husband had, with this behavior, at least generated the “objective appearance” of an extramarital affair. The OGH disagreed: even if the friendship developed without the wife knowing, and even if the husband and his friend took photos of each other, the spending time together and helping around the house alone do not offer enough material to judge the (possibly unacceptable) intensity of the friendship. Moreover, the OGH noted, it had not been proven that the two had been on holiday or intimate – implying that the holiday would have gone too far. It therefore ordered the court in first instance to make further, more detailed findings on both the friendship and the couple´s final years of marriage.

The quick takeaway from this decision is that, with regard to friendships during a marriage, just meeting or helping a friend of the opposite sex, or taking photos of one another, is not enough on its own to have a friendship immediately become “problematic”.

The slightly more nuanced takeaway is that a lot depends on a couple´s individual circumstances. It is also because of this that fault-based divorce procedures frequently focus on very minute and sometimes intimate details of a marriage. This is not without reason: among other things, the party culpable of having caused the divorce may be forced to pay the other party alimony.

Finally, it should be kept in mind that the action, or the ground for divorce, must have actually caused the breakdown of the marriage. What is unacceptable for most couples might be fine for some others. To loosely quote a well-known textbook: if you cheer on your partner in a swingers´ club, basing your lawsuit on infidelity is going to be challenging.

Discussed decision: OGH vom 22.06.2021, 1 Ob 2/21g