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Austria

Austrian family and succession law recognise three forms of couples' relationships:

  • MARRIAGE between persons of opposite and same sex ( the latter as of 1 January 2019)

  • REGISTERED PARTNERSHIP between persons of opposite and same sex (the latter as of 1 January 2018)

  • DE FACTO PARTNERSHIP between persons of opposite and same sex

Marriage is regulated under the Civil Code, while the regoistered partnership is regulated under the Registered Partnerships Act. The de facto partnerships are regulated by rules of the secondary law and, following the reform of inheritance law of 2015-2017, by the Civil Code.

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DISCRIMINATORY RULES

Marriage, registered partnership and de facto partnership are allowed for both, opposite and same-sex couples. However, there are still some differences between the legal regulation of the three types of family formations. The duties arising out of a marriage and a registered partnership are largely aligned, but not identical. Additionally, it is easier to dissolve a registered partnership than to obtain a divorce. Only limited legal effects are then attached to the de facto cohabiting partnerships.

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Links to applicable regulationn

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MARRIAGE

  • In Austria only a civil marriage has prsonal and property  legal effects. § 90 of the ABGB foresees the rights and duties of the spouses. According to this disposition the spouses may have a matrimonial relationship (which also comprehends the duty to live together). They have to behave loyally (Treuepflicht), respect and support each other (respektvolle Begegnung and gegenseitige Beistandspflicht). These duties are considered to be mandatory. In other cases (i.e. with regard to other provisions), spouses can agree to depart from the default rules and it is also possible for one spouse to act without the consent of the other if there are important personal reasons. According to § 90, paragraph 2 of the ABGB, each spouse may contribute to the costs of the household and assist the other in his or her profession. The spouses may agree on their Ehewohnung (i.e. the marital home). § 97 of the ABGB provides some restrictions concerning its disposition. Both spouses have the same duties to each other. Spouses don’t necessarily have the same name.

The default or statutory family property regime under the Austrian law is the separation of property (Gütertrennung) (see §§ 1233 and 1237 of the ABGB). Therefore, each spouse has the exclusive ownership of the assets brought into and acquired during the marriage. Each spouse manages his or her property (however, a common administration of the property can also be agreed) and is free to dispose of his or her assets. A limitation of this freedom through an agreement is possible (see § 364c of the ABGB). Such an agreement is opposable to third parties after the registration in the land register. Some limitations (contained in the Wohnungeigentumsgesetz: see § 13 of the WEG; confront § 97 of the ABGB) are foreseen with regard to the disposition of the family residence (or Wohnungseigentum). Under the default property regime, each spouse is liable for his or her owns debts, and not for the debts incurred by the other spouse. Only if an obligation was entered into by both spouses, there’s a joint and several liability of both spouses (Solidarhaftung). If the spouses live under the matrimonial property regime of separation of property, each of them has the right to be compensated for the assistance of the other spouse in his or her profession (§ 98 of the ABGB). An exception from the principle of separation is the so called Schlüsselgewalt (or agency implied in fact), which allows the spouse who runs the household and has a low income (or no income at all) to oblige the other one, concluding legal transactions for domestic purposes of daily life for him or her (§ 96 of the ABGB).

A property regime different from the default one can be chosen by the spouses through an Ehepakt or marriage contract (§§ 1217 et seq. of the ABGB). The marriage contract may be concluded in the form of a notarial deed (§ 1 NotaktsG). However, according to the Supreme Court, it’s still valid if it’s (factually) enforced. The contract law rules apply. Minors need the approval of both parents in order to conclude the marriage contract.

Spouses may e.g. choose the family property regimes of community of property or Gütergemeinschaft (which can be: general, allgemeine Gütergemeinschaft; or limited, beschränkte Gütergemeinschaft, where only certain assets are jointly owned). A distinction can be made between the community of property during life (Gütergemeinschaft unter Lebenden) and community of property after death (Gütergemeinschaft auf den Todesfall). If the spouses live under the property regime of community of property during life, they are jointly owner of the common property (Gesamtgut) according to the shares they’ve agreed. The spouses can agree that some assets are excluded from the common property and belong to each of the spouses (Vorbehaltsgut). There’re also some rights, which cannot be part of the joint property of the spouses (Sondergut). There is inter partes prohibition for spouses to dispose over individual shares of the common property. However, if one spouse disposes over his or her share, the transaction is to be considered valid and he or she is only responsible towards the other spouse. The prohibition of alienation (Veräußerungs- und Belastungsverbot) can only have effects towards third parties, if it was entered in the land registry (§ 364c of the ABGB). The spouses can agree on some management rules in the marriage contract. In case of community of property, each spouse in proportion to his or her share becomes debtor of the other spouse’s creditors. There are some differences in case of general community of property and limited community. In case of a community of property after death (Gütergemeinschaft auf den Todesfall), during the marriage the assets of the two spouses remain separated and each spouse can freely dispose of his or her property. This only changes at the time of the death of one spouse, when the property of both spouses is put together and divided in two parts (after deduction of debts). One of the two parts goes to the surviving spouse, while the other is transferred in accordance with the inheritance rules.

  • In case of a dissolution of the marriage (by invalidation, cancellation or divorce), the property is divided according to §§ 81 et seq. EheG.

If there is no consent, the court decides in a non-contentious legal proceeding (Ausserstreitverfahren, see § 98 of the ABGB). If one spouse proves, that some goods were brought into the marriage by him or her or were acquired by him or her for his or her own use, they will remain to him or her. The same is for the assets, that a spouse inherited or received by donation from a third person. Also the assets of personal and professional use of one spouse or belonging to a company (the same is for the company’s shares) are not included in the division (see § 82 of the EheG). The marital home is subject to the division if the conditions listed in § 82, paragraph 2 of the EheG exist, unless an exclusion was agreed (§ 87, paragraph 1 of the EheG). When the property is divided, the spouses’ contribution to its acquisition and the children’s interest (in particular, their well-being) are to be taken into account (§ 83, paragraph 1 of the EheG). Debts have to be considered in the division too (see § 81, paragraph 1 and § 83, paragraph 1 of the EheG). The spouses can also meet an advance agreement, in order to divide their matrimonial property in case of a divorce.

  • In the event of the death of the spouse, the situation differs in case of testate and intestate succession.

If one spouse dies testate, the law always reserves to the surviving spouse a compulsory share amounting to ½ of his or her intestate portion (§ 759 ABGB). If one spouse dies intestate, the other one inherits 1/3 of the estate if there’re relatives belonging to the 1st class. If the deceased left his parents, he or she gets 2/3. The spouse’s rights have been incremented through the reform in 2015 as, if there’re no deceased’s descendants, he or she only inherits along with the deceased’s parents (§ 744 of the ABGB). If one of the deceased’s parents dies, the spouse gets his or her share. The size of the share belonging to the spouse depends on the co-existing relatives who will inherit. The spouse is additionally entitled to continue to live in the family dwelling house (§ 745 of the ABGB) and to use the goods contained therein. The spouse also has a maintenance claim (§ 747 of the ABGB). However, he or she has no succession rights in case of a divorce or an annulation of the marriage (§ 746, paragraph 1 of the ABGB). Spouses may set up a joint will. They also may conclude a succession agreement (§ 1249 of the ABGB).

 

REGISTERED PARTNERSHIP

  • The property effects of the registered civil partnership coincide with those arising from the marriage. However, there are also some differences. E.g. registered partners are not obliged to a mutual faithfulness (Treuepflicht), but only have a duty to (live in) a relationship of reciprocal trust (Pflicht zur Vertrauensbeziehung). Furthermore, it is easier to dissolve a registered partnership as to obtain a divorce (see §§ 13 et seq. of the EPG).

 

NON-REGISTERED PARTNERSHIP

  • There is no general regulation of the de facto partnership’s property effects under the Austrian law. On the contrary, there’re only some dispositions (not only in the field of the private law), which applies to non-registered and non-married partners.

  • There’re rules dealing with the succession rights of non-registered and non-married couples. The most important of them is § 14 of the Mietgesetz (rent law act) which foresees the right of the partner to enter into the contract after the other spouse’s death. To be mentioned is also § 2 of the WEG 2002, which extends the possibility of an ownership partnership for apartments to unmarried couples. Partners also have the possibility to meet a Partnerschaftsvertrag or partnership agreement within some limits. The non-registered partner can be intestate heir too, but only if there’re no other eligible heirs (§ 748 of the ABGB). Additionally, the law recognizes him a special succession right (§ 745 of the ABGB), i.e. the right to stay in the family house and to use the chattels therein. This right normally belongs to the non-registered partner only if the partnership lasted at least 3 years. Additionally, the partnership should not be an extra marital one. The special right recognized to the non-registered partner has a duration of only 1 year from the deceased’s death (§ 745, paragraph 2 of the ABGB), while the right of the spouse on the dwelling house has no time-limit.

Based on the national report prepared by Tereza Pertot.