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Amicable divorce: It is not mandatory

If we take a look at Austria’s divorce statistics, we can see that most divorces are amicable. In 2020, 87.1% of all divorces were consensual divorces. Consensual does not necessarily mean peaceful. What the statistics do not show is that not everyone comes to the divorce judge with a ready-made agreement. Sometimes a divorce by mutual consent is preceded by long proceedings until an agreement is finally reached.

Amicable Divorce- what are the requirements?

An amicable divorce requires an agreement on the main consequences of the divorce. For example, you have to agree on how the joint assets and joint debts are to be divided, or how you are going to handle post-marital maintenance. If there are children, you also have to agree on child maintenance, custody and visitation. If there is no agreement on these issues, a divorce by mutual consent is out of the question. Especially in a crisis situation, it can be challenging to reach an agreement on all these points.

Before agreeing on the consequences of divorce, the first step is to find out whether both spouses want a divorce. If only one person wants to get divorced, the possibilities of getting a divorce promptly and without complications are limited.

What to do if a amicable divorce-fails

If an amicable divorce is out of the question, the person seeking a divorce can sue the other person for divorce. This is especially the case if the other person has committed such serious marital misconduct that the relationship has been destroyed because of it. Marital misconduct includes adultery, violence, emotional cruelty, etc. If the person who does not want to get divorced is not guilty of any misconduct, the person who wants to divorce has the option to wait and sue for divorce 3 years after the dissolution of the (domestic) community. However, moving out of the matrimonial home is a serious breach of marriage – this should be taken into consideration in view of later proceedings.

In Austria, there have been repeated discussions and efforts to abolish the principle of fault for several years. In short, the principle of fault means that the person who is solely or predominantly to blame for the failure of the marriage might suffer financial disadvantages. The review of the principle of fault was, among other things, included in the government programme 2020 – 2024. The criticism, which is justified among other things, is that the airing of dirty laundry in court is dispensable. However, there are also weighty voices critical of abolishing the principle of fault.

Men are more often to blame for the divorce

Divorce proceedings are won by women to a higher percentage. In the total of 1,719 divorces in 2020, the man was to blame in 48.0% and the woman in only 9.5%. In 29.7%, both were to blame and in 12.9% of cases neither was to blame. Post-marital spusal support is often linked to a “victory” in court. In Austria, it is still women who devote themselves to unpaid care work such as childcare or caring for relatives. Therefore, women are often more dependent on post-marital maintenance than men.

If an abolition of the principle of fault is discussed or considered, this circumstance must be taken into account or another model for post-marital maintenance must be found that does not disadvantage women.

As a rule, an amicable divorce is to be preferred to a lengthy, expensive and emotionally demanding court proceeding. But: The agreement should should be beneficial for both. It does not malke sense to forego everything out of fear of contentious divorce proceedings.

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Spousal support – the money after the divorce – Law & Beyond (lawandbeyond.at)

Child maintenance: FAQ – Law & Beyond (lawandbeyond.at)

Joint custody and other misunderstandings – Law & Beyond (lawandbeyond.at)

Marriage contract – better than its reputation? – Law & Beyond (lawandbeyond.at)

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