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The crux of the marital home

The number of marriages in Austria has been relatively constant for several years. However, many people associate certain resentments with the institution of marriage and fear financial disadvantages through marriage. The legislator also wanted to counteract these resentments. It is for a few years now possible, to make agreements on the marital home in advance, i.e. before a divorce is in the offing.


What is a matrimonial home?

In simple terms, the matrimonial home is a permanent home in which the spouses live together. The marital home does not have to be a classic three-room flat in a block of flats. It can also be a mobile home, a house, a boat or an allotment garden. The point is that the couple does not just stay there temporarily but sees the common centre of life at that place. Even people who are not specialists or experts in the field of family law have an inkling that “the marital home” can become a problem in the event of a divorce. People fear for their property.

The classification as a matrimonial home has far-reaching effects. The matrimonial home and its occupants are given special protection. The protection applies during an ongoing marriage, regardless of who owns the flat or who is entitled to dispose of it. In other words: even if one spouse is the owner or main tenant of a flat, the other person may not simply be thrown out. No matter how bitterly one is in dispute. Sometimes you realize in the event of an dispute, that you cannot force the partner to move out, if they have a urgent housing need.


Urgent need for housing

An urgent need for housing is assumed by the courts if the spouse does not have any other housing option available that corresponds to the standard lived in up to now. If the family lives in the wife’s villa in a noble district of Vienna, the husband, who takes care of the small children, cannot be evicted to a one-room flat on the outskirts of the city.



Even after divorce, when it comes to division, the marital home has a special position. Generally speaking, property that one spouse already owned before the marriage, that was given as a gift or inherited, is not to be divided in the case of divorce. This may be different in the case of the marital home. Even if a person was already the owner or occupier of a property before the marriage, it may fall within the division under certain circumstances. It is predictable, among other things, that the other person is dependent on continuing to use the flat in order to secure his or her living needs. The most significant case in practice is that it is in the interest of a common child to continue to use the house/apartment. If possible, one wants to prevent a child from being torn out of its previous social environment and having to change school or kindergarten, for example.



For some years now, it has been possible to conclude a contract on the marital home in advance in the event of divorce. Especially if you are already the owner of a property before marriage, you have an interest in securing your property. In the meantime, it is possible to contractually exclude the possibility of the other person asserting claims to the marital home in the event of divorce. However, it is not always clear whether such an agreement will withstand a possible war of Roses in the future. In extreme cases, the court can deviate from such agreements on the marital home. On the one hand, this is understandable because one wants to protect the weaker person, but it does not necessarily contribute to legal certainty.

The protective interests of one partner are in tension with the property rights of the other in the regulations concerning the marital home. Finding a balance that is perceived as liveable by both sides is often a high-wire act.

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