If you want to put it positively, a divorce is a new beginning. If you don’t want to put it positively, a divorce is a crisis situation in which you don’t exactly see the best side of your partner. This is accompanied by insecurities. Not only emotional, but also financial. It does not help to ease the situation if there is a foreign connection. If one has married or lived abroad and perhaps not both persons have Austrian citizenship, it often becomes even more opaque. If a divorce with a foreign connection is pending, various questions arise: Which court has jurisdiction for an international divorce? Which law applies and will the divorce be recognised in another country?
WHICH COURTS HAVE JURISDICTION OVER AN INTERNATIONAL DIVORCE?
In principle, Austria is competent for a divorce if both spouses have their place of residence (habitual abode) in Austria or had it last time, and one of them still lives in Austria.
The EU has issued two regulations on the subject of international divorce. One regulation regulates which court in which Member-State has jurisdiction. The other regulation regulates which law is actually applicable. These regulations apply in most Member States. Under EU law, there are different criteria as to which court can have jurisdiction in which country. This means that there is often a choice of where to start divorce proceedings. For example, if a couple has lived in Vienna for three years, married in Italy and are both Italian nationals, they could seek a divorce in both Austria and Italy. If an Austrian court is seized under these conditions, Austrian law is also applicable.
Just because divorce proceedings are conducted before an Austrian court does not automatically mean that Austrian law is also applicable. It is possible that an Austrian court has to conduct divorce proceedings according to foreign law. However, there are limitations to this: Foreign law, or laws that contradict the basic values of the Austrian legal system, do not have to be applied by Austrian courts. A law that provides for divorce in the case of an infringement formula would not be applicable in Austria. The same applies, for example, to plural marriages.
First come, first served?
Since there is often not only one possible competent court or country, it is important to consider which court and which law would be advantageous. There are also different requirements for a divorce in the European context.
In some cases, the person who takes the first step has a decisive advantage, as he or she is able to decide where the proceedings will be conducted. For example, if person A brings a divorce action in Austria and person B calls a court in Italy a few days later, the Austrian court has jurisdiction. Apart from the fact that one jurisdiction may seem more convenient than the other: It can be a significant advantage to be familiar with the language and or court and authority structure and not have to travel a long way for every hearing.
In principle, Austria automatically recognizes foreign divorces. In exceptional cases, however, the foreign decision may be refused recognition.
Tipp: JURISDICTION AGREEMENT for an international divorce
In order to avoid the uncertainty of being confronted with possibly foreign courts or legal systems, you can decide in advance by means of a contract which law is to be applied in the event of a divorce. This makes sense especially if you married or lived abroad with your spouse and have different nationalities.