The legal implications of marriage – obligations in a marriage

A marriage results in certain rights and obligations on the part of the spouses, which do not exist in the case of non-marital cohabitation^{German text}.

These include the following obligations:

• a comprehensive marital relationship, specifically the obligation to live together,
• faithfulness,
• respect for one another, and
• support for one another.

In general, the state does not intervene in private matters of this kind. Therefore, in principle, these obligations cannot be enforced before a court. However, breaching these obligations may be relevant as grounds for divorce. When determining fault in the case of a contested divorce, it may be significant whether a spouse complied with these 'obligations' or not.

Detailed information on 'Contested divorce'^{German text} and 'Liability for third-party debt'^{German text} can also be found at oesterreich.gv.at.

Living together – ‘separate accommodation’

In general, spouses are obliged to live together. If one spouse moves out of the shared home against the will of the other spouse, this can be held against them in the case of a contested divorce.

However, if living with the other spouse is intolerable, particularly due to the threat of physical violence, a spouse can temporarily move to separate accommodation. This is also possible for important personal reasons (for example in order to care for a family member who lives far away). In order to exclude any negative consequences in the event of a possible subsequent contested divorce, it is possible to file a corresponding motion for a declaratory judgment with the court. In non-litigious proceedings the court determines whether the moving out of one spouse, the demand for temporary relocation of the shared home or the refusal to move with the other spouse was or is lawful. If there is a corresponding decision by the court, the fact that the spouse moved out can no longer be held against them in the case of a contested divorce.

Maintenance

If one spouse runs the household alone, they are entitled to maintenance. On request, this maintenance must be paid fully or partially in cash. Exceptions: The spouses have very little money at their disposal.

If a spouse is unable to pursue gainful employment or run the household, for example because of health issues, they are entitled to maintenance.

If the joint household is dissolved, in principle the entitlement to receive maintenance from the spouse will continue to exist.

Depending on the type of divorce^{German text} (by mutual consent, contested), the divorced spouse may also be entitled to receive maintenance from the other spouse.

Further information on 'Maintenance'^{German text} can also be found at oesterreich.gv.at.

Household, upbringing of children and earnings

According to the law, running the household, bringing up children and pursuing gainful employment should be divided between the spouses by mutual consent in such a way that the respective contributions made are balanced. This should in particular take into account the occupational stress of each spouse. If they have children, they should also take into account their welfare as part of this. 

In principle, therefore, both spouses should contribute to the household. An exception to this is if only one spouse is in gainful employment. In this case, it is possible for one spouse to run the household alone. 

In the case of a serious request on the part of a spouse (for example after starting gainful employment), the marital relationship should be reorganised by mutual consent.

In principle, one spouse must contribute to the earnings of the other spouse if: 

• this is reasonable;
• this is customary in accordance with the living circumstances of the spouses; and
• there is no agreement to the contrary between the spouses.

If a spouse contributes to the earnings of the other spouse, they will be entitled to reasonable compensation for this contribution. The level of entitlement depends on the type and duration of the contributions made. Due consideration must be given to the overall living circumstances of the spouses, particularly including any maintenance paid.

Parental responsibility

Spouses are also obliged to support one another with the parental responsibility for stepchildren^{German text}. If required by the circumstances, the step-parent also represents the parent in day-to-day matters of parental responsibility.

Further information on 'Parental responsibility'^{German text} can also be found at oesterreich.gv.at.

Rules on names

In the event of marriage, it is possible to choose a shared surname, adopt a double-barrelled name or keep separate surnames.

Further information on 'Changing your name after marriage'^{German text} can also be found at oesterreich.gv.at.

Property ownership

Under Austrian (matrimonial) law, the statutory matrimonial regime of separate estates applies. This means that each spouse retains ownership of the property acquired prior to and during the marriage. Even after a divorce, the spouse remains the owner of the assets that they brought into the marriage and/or acquired during the marriage; however, marital property and marital savings are to be divided up (on request).

However, a community of property can be agreed in a marriage contract.

Further information on 'Matrimonial property regimes'^{German text} can also be found at oesterreich.gv.at.

Legal basis

Sections 44, 89 to 100 and 1233 to 1237 of the Allgemeines bürgerliches Gesetzbuch (ABGB)