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Privileged divorce

Privileged divorce

What is a privileged divorce and how to get it: When relationships or even marriages are in crisis, the desire for a swift divorce is often expressed, at least on one side. Even if the marriage has been longstanding, the tendency is nevertheless for the person who has made the decision to separate to want to end the marriage as swiftly, efficiently and inexpensively as possible. Sounds good in principle. However, it is important to remember that marriage itself is an anti-dissolution contract and the idea of marriage is long-term. Marriage is not a subscription that can be easily canceled. Sometimes it not only takes time to emotionally put it behind oneself, but it is also legally advisable not to rush into anything.

Are men more often at fault?

In Austria, the principle of fault still applies. There are efforts to abolish this, but it is not clear if or when this will happen and in which form. Post-marital maintenance essentially depends on fault. In simple terms, it can be said that if a court concludes that one side is solely or predominantly to blame for the breakdown of the marriage, this can mean financial disadvantages in the form of post-marital maintenance.  According to Statistik Austria, 12,456 or 85.8% of all divorces in 2021 were amicable. In the total of 1,803 contested divorces, the fault lay with the husband in 46.0% of cases, with the wife in 8.9% of cases, with both in 32.4% of cases, and with neither in 12.8% of cases. What does not show up in these statistics is the fact that divorces which start with a lawsuit are often divorced amicably after (court) negotiations.

A fast divorce as an advantage?

When people want to get out of a marriage, there are different options on how and whether to start the project of divorce. Here, it strongly depends on the perspective. Imagine a marriage, for example, which produced four children, lasted 20 years, and in which one person was the sole breadwinner. For the economically stronger person, a swift, amicable and cost-effective divorce, including a waiver of alimony, would be very beneficial. For the other person not at all.

Concept of divorce after dissolution of domestic community or the privileged divorce system

If one can agree with the partner on a divorce and agree on its consequences, a divorce by consent is possible. If a person refuses a divorce but can be accused of a marital offense which led to the breakdown of the marriage, it is possible to seek a divorce by means of a complaint. If the “better half” can neither be convinced of an amicable divorce nor accused of anything, it proves to be more difficult.

It should be noted that, when married, there is, in principle, an obligation to cohabit. In a crisis or a conflict, it is not advisable to simply move out, at least from a legal point of view. This is because moving out of the matrimonial home can be considered a serious marital offence. If living together is unbearable, it is advisable to agree (in writing) to separate residences.

If the domestic community of the spouses has been terminated for three years, each of the spouses (i.e. also the one who is “at fault ” for the breakdown of the marriage) may seek a divorce on the grounds of an irretrievable breakdown. The court will not grant this wish if it concludes that the marriage can be restored after all. In addition, at the request of the party unwilling to divorce, if the plaintiff spouse is solely or predominantly responsible for the breakdown and the party unwilling to divorce would be hit harder by the divorce than the plaintiff party by the rejection of the divorce petition. In a constellation as such, the courts look at all the circumstances and weigh them up. Among other things, the duration of the marriage, the age and health of the spouses and the welfare of the children are considered. After six years of (spatial) separation, the petition for divorce must be granted in any case.

Consequences of a “privileged” divorce

If after such a lawsuit, after three years of separation, the final judgment states that the petitioner (Kläger:in) is solely or predominantly at fault for the divorce, it can mean great advantages regarding spousal maintenance and pension insurance for the “innocent” spouse who wanted to hold on to the marriage despite the marital offenses of the other.

Thus, even after the divorce, the spouse will be treated in the same way regarding the right to maintenance as he or she would be if the marriage had continued. Certain requirements must be met for this privileged divorce. This may be the case, for example, if the marriage lasted at least 15 years, the respondent who wanted to hold on to the marriage is at least 40 years old and the petitioner is “at fault”.

Why sometimes it doesn’t have to be a divorce

In summary, when it comes to the question of whether a (swift) divorce makes sense, it strongly depends on who is asking. It may even be more advisable for someone who has not or only marginally been employed and/or who has done a lot of care work during the marriage, while the other person has been working, to not seek a divorce himself/herself. This applies even, or especially, if the spouse has moved in with a new girlfriend or boyfriend, to use a striking example. Therefore, it may be wise to consider all options as to whether it is “better” to take action yourself by means of a lawsuit or whether it would be smarter to wait until the other person seeks to leave the marriage after three years. Sometimes it may be possible to simply agree with your partner on modalities of separation that suit both of you – without a divorce.

This article was first published in The standard.

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