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Christmas and family law issues
Even intact families argue at Christmas, but if the marriage is in crisis or the parents are separated, completely different challenges and questions arise.
Right of contact against one’s will?
If a court has to decide on the right of contact, various factors play a role. Legally, the “number 14” is a magical limit here.
Who is interested in black money other than the tax office
What about illegal income, so-called “black money”? Is undeclared income relevant for the alimony to be paid or can one “earn something on the side”?
What is the process of an amicable divorce?
Again and again, it is noticed that people are not aware that a marriage cannot be terminated unilaterally at any time without giving reasons and that for an amicable divorce, the cooperation of the other spouse is required. Not so easy, when you consider that two people usually do not seek a divorce exactly when they get along particularly well.
Child support and contact right- where is the link?
Children cost money. Anyone who has children must pay child support. So far it sounds quite simple, yet child support is a topic that evokes many questions and frequent conflicts.
Common misconceptions about divorce
In the practice of law, one encounters the most common errors again and again. Especially considering the fault principle that applies in Austria in divorces, it makes sense to be informed.
Joint custody when residing abroad?
When people do not part on particularly good terms, they often no longer want to know anything about each other. If one has children together, this is not possible
Refusal to have kids as a marital offence?
Refusal to have kids as a marital offence? Under the at fault principle in Austria it might be relevant when it comes to a divorce.
Friendship as marital misconduct?
Spouses need to be faithful towards each other. However, this is not limited to sexuality. Also a friendship can be marital misconduct.
Privileged divorce
In order to be able to get a privileged divorce it can make sense to not actively pursue a divorce but wait until the other party starts.
Marriage and registered partnership
marriage and registered partnership: What is the difference? What is right for me and what are the differences?
Amicable divorce: do’s and don’ts
Especially with regard to divorce, there are different options in Austria. The most common variant is that of an amicable divorce.
Mediation in divorce proceedings
Mediation is an extrajudicial procedure for resolving conflicts. One of its best-known areas of application is divorce mediation.
Right of contact for grandparents and ex-partners
Is there also a right of contact for grandparents and ex-partners? By law, “third persons” can also have a right of contact.
Maintenance: Playboy-limit
There is a cap on child support for very high earners, the so-called “playboy-limit”. What does it mean and who does it apply on?
Divorce and social media
Even after divorce proceedings, caution is advised when it comes to social media use. Concerning potential legal implications in Austria.
Divorce by mutual consent: prerequisites
Marriage between two people is not only a love relationship. When you marry, you also enter into a contract. Many people are not aware of this to its full extent. Even though it may be more romantic to only think about the wedding dress, the cake or the guest list, it makes sense to find out what mutual rights and obligations apply in a marriage before getting married.
Private Investigator in a divorce
The end of a marriage is usually not pretty. Of course, this is not a purely Austrian phenomenon. However, Austria is one of the few countries in Europe that still applies the principle of fault. This also means that divorce proceedings are not only emotionally costly for those affected, but also financially.
Child maintenance: FAQ
Alimony or maintenance is often an irritating topic. People ask themselves during a separation whether they can afford the child support at all. On the other hand, the question whether the child support will be sufficient to cover the needs of the children, arises. Some people who pay child maintenance fear that they are actually sponsoring the ex-partner with their payments. In fact, this is usually not the case.
Amicable divorce: It is not mandatory
If we take a look at Austria’s divorce statistics, we can see that most divorces are amicable. In 2020, 87.1% of all divorces were amicable. Amicable does not necessarily mean peaceful. What the statistics do not show is that not everyone comes to the divorce judge with a ready-made agreement. Sometimes a divorce by mutual consent is preceded by long proceedings until an agreement is finally reached.
Spousal support – the money after the divorce
People are often concerned about the financial consequences of a divorce. Some worry about having to support their (ex-)partner financially for the rest of their lives. Others fear no or too little support from the other person. The fact is that a divorce is rarely accompanied by an economic improvement. Simply because a divorce does not magically create more money, but suddenly twice as many households have to be served.
Child maintenance new spouses
The father of a daughter who is now 20 years old now has to pay dearly for his marriage to a wealthy woman. The Supreme Court has confirmed (22.09.2021, 4 Ob 67/21p) that the fictitious maintenance claim he would have against his well-off wife increases the child maintenance for his daughter, also for the past.
Cuckoo children and their fathers
The term “cuckoo child” means that the alleged father is not the one from whom the child is biologically descended. If doubts arise as to whether the offspring is really one’s own son or daughter, this can have serious emotional, but also legal consequences.
Right of contact and its limits
The right of contact – formerly called visitation rights – repeatedly leads to great difficulties for parents who live apart. Contact rights and custody are two different things. This is a common misunderstanding – the terms are often mixed up. Custody means the care and upbringing of the child, legal representation and administration of property. Contact rights, on the other hand, mean the right to have personal contact between parents and children.
Child abduction
Again and again there is widespread media coverage of cases of child abduction. This refers to cases in which one parent takes a child to another country or does not bring it back from there, thus violating the custody rights of the other parent. Only recently the Supreme Court again dealt with this issue OGH 12.5.2021, 6 Ob 83/21f).
Engagement, in love, but not married?
It is said that it is bad luck to be engaged for too long. It is said that you should get married within a year of getting engaged. Many couples who get engaged do get married. Either within a year or later. But is it only bad luck not to get married (within a year), or can it legally become a problem? Some people also make financial advance payments in view of the supposedly imminent wedding. Down payments are made, rings or dresses are bought.
Residence permit: What if it is linked to marriage?
When people get divorced, it brings many challenges. Apart from the emotional or organisational consequences, such as reorganisation, finding a place to live and orientation, a divorce is also accompanied by legal challenges. However, for people who derive their right of residence in Austria through marriage, there may be issues other than family law. People who are in Austria as “family members” often have to think about whether it is even possible for them to remain in Austria after a divorce.
What happens to a rented flat in the divorce
When two people get divorced, in most cases they lived together in some form beforehand. At least as long as both still wanted the marriage. The common home, i.e. the place where the spouses had their centre of life, can be called the marital home. It is irrelevant whether this place is a houseboat, a house, a mobile home or a classic three-room flat. The marital home enjoys a special status. Already during the marriage but also afterwards.
Post-marital maintenance?
People marry for love. People also marry because they want security and stability. But how much security is provided through marriage? Maintenance during the marriage or even afterwards – is it worth fighting over? The idea of maintenance after divorce is rather mythical among the general population and there are many misconceptions about it.
Long-term partnership: legal terms
The marital arrangements have to do with mutual responsibilities and also with money. These obligations do not automatically end with divorce and certainly not with separation. When people decide against marriage, the situation is different. The legislator does not want to impose the consequences of a contract on people who never wanted to enter into. In principle, this makes sense.
Partnership, the house and the separation
Marriage is a contract that is not open to dissolution. Cohabitation, on the other hand, is not. Many people decide that they don’t need a marriage certificate for their love and relationship, that they simply don’t want one. But what happens to the house or the flat bought together when you separate?
Marital misconduct: Expiry date?
If a person can be proven in court to be solely or predominantly to blame for the breakdown of the marriage, this can have unpleasant financial consequences for that person. Far less well known is the fact that marital misconduct, to put it bluntly, also has a certain expiry date. If you want to file for divorce because of serious misconduct on the part of your partner, you do not have an unlimited amount of time to do so.
Divorce animals: What happens to them?
Four out of ten Austrians have a pet. Some of these pet owners are married and some of them get divorced at some point. Many marriages that are contracted in Austria, are permanent . The approximately 40 percent of all marriages that do not “last” are usually divorced amicably (sometimes after years of negotiations). If no agreement is reached, a court decides.
Sexual fidelity in a registered partnership?
Since 2019, same-sex couples can marry in Austria. Likewise, opposite-sex couples can establish a registered partnership. Again and again, heterosexual couples decide against marriage but in favour of a registered partnership. This is sometimes because it is assumed that the registered partnership is a “marriage light” – also with regard to fidelity.
Diseases: Can they be divorce grounds?
Life is colourful and sometimes it doesn’t turn out as planned. When you get married, you promise to stand together in good times and bad. But how long and how bad are these bad times really reasonable? Marriage is first and foremost a civil law contract in which certain mutual rights and duties are standardised by law. One of these is the marital duty of assistance. If the duty of assistance is violated, this can be considered marital misconduct. However, there are also limits to what can be reasonably expected.
Moving out of the marital home: Divorce Case
Especially when things are not going well at home and you would like to shoot the other person to the moon, many people have the impulse to move out of the marital home to (temporarily) clarify the situation. However, if a (contentious) divorce takes place afterwards, this can have nasty consequences. It is a common misconception that there is no harm in moving out of the shared home in the event of marital conflicts. Indeed, it is often not known that moving out can be considered marital misconduct (“malicious abandonment”).
The crux of the marital home
The number of marriages in Austria has been relatively constant for several years. However, many people associate certain resentments with the institution of marriage and fear financial disadvantages through marriage. The legislator also wanted to counteract these resentments. It is for a few years now possible, to make agreements on the matrimonial home in advance, i.e. before a divorce is in the offing.
The thing about marital duties and sexual fidelity
People who marry enter into a contract. The law says that two people live in an inseparable community and provide mutual assistance. Whoever breaks the contract or does not behave according to the regulations of the marriage law will be asked to pay in the worst case.
The matrimonial home and uninvited visitors
The marital home has a special status and is highly protected. This can become relevant not only in the case of divorce regarding the division. Per se, property is exempt from division in the case of divorce if it was brought into the marriage, inherited or donated by a third party. In the case of the marital home, this may (surprisingly for many) be different.
Dawdling students: Child’s maintenance forever?
In many families, child maintenance is an irritant and a frequent point of contention between the parents. There are often difficulties in reaching an agreement between the parents when it comes to the concrete assessment of the monetary maintenance from the parent who is not the main carer. A common misconception is that child maintenance is only owed until the child’s 18th birthday. However, this is not correct. In principle, parents are obliged to pay maintenance until the children are capable of supporting themselves.
Obligated to therapy?
Especially in proceedings concerning custody or contact rights, the waves between parents can rise high. Unfortunately, especially in disputes about joint children, the conflict sometimes threatens to escalate in court. Apart from the fact that there is hardly anything closer to one’s heart than one’s own child, family law conflicts often touch on the parents’ own issues, which may be based on past experiences.
Custody vs. contact rights – are there differences?
Family law terms are often confused with one another. The same applies to custody and contact rights. Theresa Kamp clears up the most common misunderstandings.