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Christmas and family law issues

Christmas and family law issues

In fact, family conflicts have a tendency to escalate at Christmas. In advertising, films and Christmas stories, we are shown the perfect “Christmas peace”. They are often fairy tales, these stories with the family around the decorated tree. Nevertheless, it is unpleasant when our own reality deviates too much from the image of Christmas. Even intact families argue at Christmas, but if the marriage is in crisis or the parents are separated, completely different challenges and questions arise.

Christmas with the family?

Organizing the festive season can be difficult, especially when the wishes and expectations of where, how, and with whom to celebrate diverge. Spouses have to organize their life together according to the so-called consensus principle. This means that you should try to come to an agreement and make decisions together or try to reach an understanding. It should not be the case that one person rules over the other. In some (extended) families, everything works perfectly. In some, it doesn’t. The cliché of the unloved mother-in-law is not a new one. What if one spouse rejects the other’s family or family celebrations (for no reason)? Of course, there is no obligation to spend Christmas with the other spouse’s family. But: At best, you should come to an agreement and make compromises from time to time. Rejecting the spouse’s closest relatives without good reason can constitute marital misconduct. Marital misconduct can be particularly relevant in light of the principle of fault applicable in Austria. The person who can show in divorce proceedings that the other person is mainly to blame for the breakdown of the marriage may be able to derive financial benefits from this in the form of post-marital maintenance.

Who can celebrate Christmas with the children?

Who looks after the children at Christmas, i.e. on December 24th, is a question of contact rights. The right of contact is about the best interests of the child. In the best-case scenario, the parents can work out between themselves how to organize contact. Especially in the case of separated parents with a high potential for conflict, reaching an amicable agreement is always a challenge. Both parents often want to spend Christmas with their children. Legally, this is also the case at Christmas: At best, the parents can agree on where the children should celebrate Christmas. In families that still get on well, it may even be possible to celebrate together. In some cases, however, this is unthinkable. Here, for example, a solution could be found in which the parents take turns celebrating Christmas with the children every year. The option of always spending the 24th with one parent and the 25th or 26th with the other parent could also be suitable.

If the parents cannot agree, case law has stated that the child should spend particularly important holidays, such as “Christmas Eve” or their own birthday, in the household of the parent with primary care, i.e. usually with the mother. However, the other parent should be given the opportunity to celebrate with the children as close as possible to the respective holiday, for example, the day before or after.

Can Christmas reduce the child maintenance?

In principle, it is possible that certain payments in kind to the child (e.g. items of clothing, sports equipment, ski course costs, reasonable leisure costs) can reduce child maintenance. Even if these were given to the child as a gift. The idea  is that a certain part of the child’s needs are then already covered by the gift and there should be no “double provision”. For example, the parent with primary care would normally buy a winter jacket for the child and the parent without primary care would pay maintenance. However, if the child has already received a winter jacket as a gift from the maintenance debtor, the need for a “winter jacket” no longer exists in this form. However, gifts from third parties do not relieve the maintenance debtor. Also, gifts given on special occasions, such as Christmas, cannot reduce child maintenance.


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