How long does one have time to file for a divorce in austria
Many people are aware that the fault principle still applies in Austria. Most people also have a rough sense that certain behaviors, such as infidelity, could be detrimental in divorce proceedings. This is also true in principle. 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. Marital misconduct does not exactly have the expiry date of dairy products, but one does not have a particularly long time to take action. The basic idea is that a misstep years in the past should not always hover over a person like the sword of Damocles.
What deadlines must be observed when filing for a divorce in Austria?
There are no longer absolute grounds for divorce, as it used to be the case in the past. Infidelity, for example, is no longer an absolute ground for divorce and does not automatically lead to the loss of divorce proceedings. Even in the case of adultery, the court has to weigh the fault and the behavioral rejections of the spouses. Specifically, the marital misconduct must have been causal, i.e. the reason for the breakdown of the marriage.
In principle, you have 6 months from the time you become aware of the misconduct or marital misconduct of your partner to bring a divorce action. This period may be extended in certain circumstances. If there is continued misconduct, such as an ongoing extramarital relationship, or if one person has moved out of the shared home and the marital cohabitation has ceased, this limitation period can be suspended. Nevertheless, a period of six months is not a very long period of time. The spouse who becomes aware of the other’s marital misconduct should have a period to think about it, but at the same time one should not be able to keep marital misconduct in reserve in order to be able to use it later when it suits one. Again and again, family courts have to deal with the (alleged) statute of limitations of marital misconduct. Recently, the Supreme Court also had to deal with this issue (OGH 27.7.2021, 4 Ob 56/20w).
In the specific case, the husband possessed a child pornography collection. The couple had been married for a long time. The wife discovered her husband’s collection and had knowledge of it for more than six months without filing for divorce. The wife believed that the possession of child pornography would constitute continued marital misconduct. The court took a different view. It was clear that the possession of child pornography was marital misconduct which constituted grounds for divorce. However, it was not a case of continuing marital misconduct. Therefore, according to the Supreme Court, a divorce on grounds of fault was no longer an option due to the fact that the time limit had been exceeded. The fact that the wife had already reported her husband to the police did not change anything.
Absolute deadline of 10 years for marital misconduct
In addition, there is a second important deadline to consider in this context: If a marital fault was committed more than 10 years ago, it can in any case no longer be asserted. This is called the absolute limitation period. If, for example, you find out that your spouse made a drunken mistake on a trip 12 years ago, you can no longer base your divorce petition on this.
What role does forgiveness play in marital misconduct?
If one spouse has forgiven the other or has not found his or her behavior destructive to marriage, a divorce can no longer be sought on the grounds of fault on the part of the other. Older case law regularly assumed forgiveness if there was still regular marital sex after knowledge of the misconduct. For example, one-time sex was not sufficient. More recent case law, however, takes a more differentiated view and does not automatically assume forgiveness if the bed continues to be shared. Rather, the focus is on whether the restoration of a comprehensive cohabitation can be assumed from the overall behavior of the injured spouse. For example, by travelling together or spending leisure time together – or by continuing to be on friendly terms with one’s own partner
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