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. Are contagious and disgusting diseases the limit?
Divorce because of diseases but how?
In Austria, there are different ways to get a divorce. The most common variant is the amicable divorce. However, the basic prerequisite for a divorce by mutual consent is that both spouses want to get divorced. It is not at all uncommon that it already fails because of this question and not only because one cannot agree on the essential divorce consequences. If one person has culpably committed grave marital misconduct and if the marriage has been broken up beyond repair due to this person’s behaviour, a petition for divorce can be filed (fault-based divorce).
Duty to assist and its limits – what about diseases?
If an amicable divorce is not possible and a fault divorce is out of the question, there are other possibilities or grounds on which a divorce can be sought. Among others:
Divorce on grounds of marital disruption without fault
There can be situations in life and in a marriage that become unbearable without one person being blamed or without anyone being to blame. Realities of life are conceivable where a person is not to blame, but has nevertheless disrupted the marriage so deeply through his or her behaviour that the “restoration of a community of life corresponding to the nature of marriage” cannot be expected. E.g. due to a mental illness. In such a case, there is the possibility of enforcing a divorce in court under certain circumstances.
On the one hand, such a divorce requires behaviour by a person that would in principle be considered marital misconduct, but cannot be blamed, for example, because of his or her mental illness or a cognitive impairment. Jurisprudence has named as “mental impairment” for example: Psychoneurosis, obsessive-compulsive disorder, melancholia, hysteria, jealousy mania, as well as drunkenness or drug addiction that can no longer be influenced by the will. It is not necessary for a person to be completely insane, but the sanity or the ability to form a will of the ill spouse must be reduced. The reason for divorce is not the illness of one of the spouses, but the behaviour of the other spouse and the resulting breakdown of the marriage.
Divorce on grounds of contagious and disgusting disease
The name of this ground for divorce is rather difficult to digest and seems out of date. It is about the fact that one spouse can seek a divorce if the other is suffering from a serious contagious or disgusting disease and the marriage is incurably broken. In addition, it also depends on the duration of the contagion and whether there are chances of cure. According to case law, examples of such diseases can be: open tuberculosis, venereal diseases, AIDS, but not colds and children’s diseases. A merely temporary risk of infection is not sufficient. Such a divorce cannot be sought on the basis of selective or acute infections such as COVID-19.
Contradiction with the marital duty of assistance?
Marriage is not only legally designed for “sunny times”. Thus, case law and the Supreme Court also assume that the obligation to provide mutual assistance also exists in the case of illness. The above-mentioned divorce facts are somewhat contradictory to the marital obligation to provide mutual assistance.
Hardship clause in exceptional cases in disease cases?
This is why the hardship clause exists as a protective measure. According to this clause, the marriage may not be divorced if the petition for divorce is “morally unjustified”. This may be the case if the dissolution of the marriage would hit one spouse particularly hard because, for example, he or she is now dependent on the other spouse and on support and contact in this regard due to the illness. According to case law, a case of hardship also exists if the divorce would have a particularly unfavourable effect on the state of health of the respondent spouse or would destroy his or her prospects of recovery, or if one spouse is responsible for the illness of the other. However, case law is restrictive in this respect and grants the hardship clause rather in exceptional cases.
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