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Moving out of the marital home: Divorce Case

Especially when things are not going well at home many people think about moving out of the marital home to deescalate the situation. However, if a (contentious) divorce takes place afterwards, this can have problematic legal consequences.

Legal situation in Austria for moving out of the marital home

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”).

In Austria there are marital duties. One of these duties is the duty to live together. In Austria there is also still the principle of fault. This means: If one of the spouses has committed marital misconduct that leads to the breakdown of the marriage, a motion for divorce can be filed. If a fault award is made against one person and this person earns considerably more than the “blameless” person, this may result in an obligation to pay post-marital maintenance.

Moving out of the marital home can be considered marital misconduct

Due to the obligation to live together, a hasty and arbitrary move out of the marital home could be a fatal mistake. In the worst case, this could mean either having to pay maintenance for a very long time or forfeiting any claim to maintenance. Put simply: A hasty move out of the matrimonial home can have a decisive impact on the success or failure of contentious divorce proceedings.

What does this mean in practice? Do all spouses have to live together until the divorce is final, or are there other possibilities? If the spouses agree (preferably in writing) that one person “may” move out in advance, the marital community can be dissolved without risk.

Ask the court for permission to move out

Another possibility is to apply to the court for “separate residence”. If the application is granted, moving out of the marital home can no longer be claimed as a marital fault in divorce proceedings.

Do not move out!

From a legal point of view, a premature move out of the marital home cannot be recommended. Even if it is understandable that one part does no longer has an excessive desire, for example, to share the bathroom with the unfaithful wife or husband, one’s own (legal) situation is rarely improved by moving out. Theoretically, it is true that a person can move out if it is no longer reasonable for him or her to maintain the cohabitation. However, the person must then also claim and prove this. Particularly in divorce proceedings, it is often a ready-made solution if a person has simply moved out. It is then easy to claim that the marriage was already ailing beforehand, but that it was the move out of the marital home that finally killed the marriage. Even if one wants to make a claim to the matrimonial home later, moving out prematurely is not helpful, as it may suggest that one is not in urgent need of the accommodation.

If living together with the spouse is no longer reasonable due to physical or psychological violence, one should of course not expose oneself to danger. In such a case, it is possible to have the other person removed by the police or to obtain an interim injunction if there is  danger.

Even if you do not want to get involved in contentious divorce proceedings: Even and especially if you are seeking an amicable divorce, it strengthens your own negotiating position to offer the other side as little room for attack as possible and not to take any actions that could possibly be considered marital misconduct.

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