A divorce is always the end of something big. An end also means that there is a new beginning. Nevertheless, for most people a divorce is an exceptional situation. In addition to all the emotional issues, there are also the legal ones. Questions arise as to how everything should continue and how one can best protect one’s interests and perhaps those of the children despite one’s own dismay. Especially with regard to divorce, there are different options in Austria. The most common variant is that of an amicable divorce. In 2020, about 87% of all divorces in Austria were settled amicably.
What is an amicable divorce and what does it take?
Amicable does not always mean peaceful. Sometimes an amicable divorce is preceded by months – if not years – of proceedings. It often takes some negotiations either between the spouses themselves or with lawyers to reach an agreement.
In order for a divorce to be amicable, there must be a mutual desire to divorce. This can already fail if, for example, one person wants to continue the relationship. In addition, the parties must agree on the main consequences of the divorce. This means that an agreement must be reached on how the joint assets or joint debts are to be divided and on post-marital maintenance. If there are children, an agreement must also be reached on child maintenance, custody and contact with the children. Only if an agreement can be reached with the former better half on all these points is an amicable divorce possible.
Furthermore, the marital cohabitation must have been terminated for at least six months, i.e. one must have been separated for at least six months. There is a persistent rumour that a domestic or spatial separation of six months is also required. But this is not the case. On the contrary, moving out prematurely can be a serious breach of marriage. For tactical reasons, moving out of the flat should therefore not be done under any circumstances.
If two spouses wish to divorce, they can jointly file a petition for divorce at their district court of residence. An application for divorce can be filed orally at the district court, e.g. on the day of the hearing, or in writing. There is also a form that can be used for this purpose (HELP.gv.at: Forms – Form selection).
A divorce by mutual consent is conducted by the district court as a non-contentious proceeding. The competent district court will schedule a hearing after an application for a divorce by mutual consent. Both spouses must appear in person at this hearing. The agreement that two spouses must reach on the essential consequences of divorce so that a divorce by mutual consent is possible can either be concluded orally in court or already be taken along in writing and presented to the court. In any case, it is advisable to seek legal advice in advance, even in the case of a divorce by mutual consent.
If a married couple has minor children, it is necessary to undergo parental counselling with a suitable person prior to the amicable divorce (List of recognised counsellors pursuant to section 95 para 1a AußStrG – Parental counselling prior to divorce pursuant to section 95 (trennungundscheidung.at)).
The court finally decides on the application for a divorce by mutual consent by way of an order. An appeal can still be lodged against this decision. However, it is also possible to waive an appeal at the hearing, in which case the divorce becomes directly final.
Attention – good to know: Either of the two spouses can still withdraw the divorce petition until the divorce decree becomes final.
Advantages of amicable divorce
A divorce by mutual consent has the advantage that, in the best case scenario, it saves a lengthy, expensive and emotionally demanding procedure. If you have joint children, contentious divorce proceedings are also an immense burden for the children. In addition, a divorce by mutual consent is much less expensive. Lawyers often work on an hourly rate basis, especially in family law, and hourly rates of around EUR 300 are not uncommon. If there are several negotiations or extensive correspondence, you may need experts. Proceedings can quickly become very expensive. In comparison, the costs for divorce by mutual consent are manageable: EUR 312 must be paid for the divorce petition, and EUR 312 for the necessary settlement at the hearing. If property is to be transferred, something else is added.
It depends on when you can get a date at the district court for the amicable divorce, but usually an amicable divorce, where all outstanding issues have already been settled, can be settled within a few weeks to months.
When is an amicable divorce not a good idea?
In family law, it often makes sense to try to reach an agreement. An agreement is a good thing, but not at any price. In Austria, women still do the lion’s share of unpaid care work. Women often mainly take care of the children. Many women do not work for some time after the birth of the children and then return to work part-time. This puts them at a disadvantage in terms of income. If the woman has put back for the family, this should be taken into account in a divorce, perhaps when it comes to post-marital maintenance.
Women in particular should definitely seek advice before making concessions regarding a divorce. If the husband has possibly cheated and already has a new girlfriend, has simply moved out of the marital home or has otherwise not distinguished himself, this can massively improve one’s own position in divorce proceedings. Even if the goal is perhaps an amicable divorce, it makes sense to weigh up one’s own chances in hypothetical divorce proceedings. If you have good chances in a possible contentious divorce proceeding, this will also have to be taken into account in the negotiations and an amicable divorce.
If you can agree within the framework of an amicable divorce on what you might be entitled to in divorce proceedings, it is a good thing. But: You should not give up everything just to avoid divorce proceedings in any case.