The refusal to have kids as a marital offence? Admittedly, there is a need to discuss marriage as an institution. It is said that society is changing, but is marriage changing too? Marriage is a romantic matter. Ideally. But in any case, it is a contract. The law requires the spouses to be willing to have children and raise them. What if the spouses’ desire to have children differs? Or perhaps one person does not want to have children at all, but the other has an urgent desire to have children and dreams of a large family? Do not get married, one might say. But it is not always that simple.
Children as an essential element of marriage?
The Austrian General Civil Code (ABGB) still states that spouses have the will to have children and to raise them. But this will is no longer an essential element of marriage, at least since same-sex couples have also been able to marry. Until the Marriage Law Amendment Act (Eherechtsänderungsgesetz) 1999, a specific ground for divorce existed, called “refusal to procreate”. This ground for divorce no longer exists in its (absolute) form. Since then, however, the refusal to have children can be used in the context of a general “fault” divorce, according to the conditions that apply. Therefore, the court would have to consider the (groundless) refusal to have children as a grave marital offence, which then has led to the breakdown of the marriage.
Refusal to procreate – a marital offence?
In Austria, the principle of fault applies and therefore, if there is no agreement, the end of a marriage is about who is to blame. One does not want to be “at fault” for the end of the marriage. Neither emotionally nor legally, because it can have financial consequences in the shape of post-marital maintenance. According to court rulings, the refusal to have a child or an abortion can justify a “fault” divorce only if such a decision is groundless and in violation of the requirement of consent. According to the law, spouses shall conduct their relationship amicably and with mutual consideration. However, whether the refusal to procreate can and should constitute a marital offence at all may strongly be doubted and is a matter of controversial discussions. Considerable reasons why someone refuses to have (more) children could be: health problems, social and/or economic difficulties, poor housing conditions, little support from one’s partner regarding the care of present children etc.
Refusal to have another child as a marital offence?
The Austrian Supreme Court (OGH) last dealt with this question in 2015 (9 Ob 29/15v) but left it largely unanswered. The specific case was about a couple who already had a child. This child was ill and there was a chance that another child might also suffer from this (severe) disease. The woman therefore wanted to refrain from having any more offspring, but the man did not. The Supreme Court finally stated that even if one assumes that the refusal to want to have more children can constitute a divorce-relevant marital offence, valid reasons such as health risks exclude this reason for divorce. These risks were present in this specific case. Ultimately the husband was declared to be at fault for the divorce as he had behaved in a disrespectful and dominant manner towards his wife.
Abortion as a martial offence?
In certain circumstances, abortions are not punishable in Austria. Whether they can constitute a martial offence, is relevant in light of the prevailing principle of fault. Again, it will depend on the specific circumstances. An abortion may constitute a grave martial offence if it occurs without grounds and without consent. Against this background, the Austrian Supreme Court did not consider the abortion by a 42-year-old woman as a marital offence, who already had three children, whose husband had an affair for years and whose mother was seriously ill (2 Ob 702/87). However, in 2017 in the case 5 Ob 166/17y the court held that the fact that a woman did not discuss the abortion with her husband at all but had it performed, constituted a grave marital offence. The question whether the Supreme Court would have judged this differently if the wife had discussed the matter with her husband but still had the abortion performed against his will, remains unanswered.
This article was first published at the Standard.