Skip to content
Visitation rights: The Christmas (un)peace
Christmas is a time that is charged with expectations. Especially in regard to family, family get-togethers and the “Christmas Eve”. In family law practice, we experience that conflicts or family wishes that remain unresolved, even if they exist all year round, are often an even bigger burden for those affected
5 things I wish I had heard when I was a student
I thought about the questions students keep asking me. And tries to answer a few of them here.
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 amicable. Amicable 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.
The matrimonial home and uninvited visitors

The matrimonial home has a special status and is highly protected. This can become relevant not only in the case of divorce regarding the division. Per se, property is exempt from division in the case of divorce if it was brought into the marriage, inherited or donated by a third party. In the case of the marital home, this may (surprisingly for many) be different. But even during an ongoing marriage there are some special rules to be observed. For example, it is not possible to simply throw out a spouse who is dependent on the marital home. It is irrelevant who owns the matrimonial home or who is entitled to dispose of it.


 Legal situation concerning the matrimonial home

Unless the spouses have agreed otherwise, the obligation to live together applies during the marriage. This is another reason why it is not advisable to simply move out on your own in case of conflict. This can be considered as an act of marital misconduct. As long as you get along well, or at least do not feel any physical discomfort from the other person’s presence, living together is usually not a problem. However, if the spouse suddenly uses the marital home in a way that makes one become desperate, to say the least, the question of legal solutions sometimes arises.


 Uninvited visitors in the matrimonial home

As a matter of principle, spouses have to show consideration for each other and to organise their lives amicably. The specific way in which the matrimonial home is used – and which “rules” apply there – should be determined jointly. Each of the spouses should be given a certain amount of space to develop their own personality. It must be possible for both spouses to maintain contact with friends and relatives and to invite these people to the marital home.

But even in a marriage, the freedom of the individual often ends where it considerably interferes with the freedom of the other person or considerably disturbs the common life. In this case, the interests of the spouses must be compared and a balancing of interests must be carried out. So if spouses have different opinions on visitors in their home: On the one hand, the frequency of the visits, the behaviour of the visitor, the size of the flat, the relationship to the visitor and other factors will be taken into account. For example, if someone always comes and then eats the entire contents of the fridge and then trashes the flat, this will not have to be tolerated. Occasional visits will generally not disturb family life, but it could be different if you let the new girlfriend or mother-in-law move in, or if the third party significantly disturbs marital and family life. Here, the disturbed spouse may even be able to enforce injunctive relief/eviction. It is interesting to note that the Supreme Court has been rather generous with regard to visits by new partners, especially if the marriage has already broken down beyond repair.


Mother-in-law outperforms new partner

For example, the Supreme Court pronounced that one does not simply have to put up with the mother-in-law suddenly moving in against one’s will (6Ob54/99f). In the specific case, the wife had allowed her mother to move in during the ongoing divorce proceedings, who then interfered in disputes and repeatedly denied the husband access to his house or to the children’s room of the son. The husband then (rightly) requested the mother-in-law to move out.


Supreme Court rulings concerning the matrimonial home

In another case, the Supreme Court ruled that the divorced wife had to put up with visits from the husband’s new girlfriend in the former marital home (6 Ob 40/18b). In the specific case, however, the marriage had already been divorced and was therefore also incurably broken. The Supreme Court found that the visits of the new girlfriend did not make it impossible for the ex-wife to use the flat, especially since the ex-husband mainly received the visits while she was at work.

In another decision, the Supreme Court (4Ob223/02a) ruled in favour of the wife’s new boyfriend. Here too, however, the marriage had already broken down beyond repair. The husband still lived in the same house with the wife and the two common children. The wife had a child with another man. This man repeatedly stayed in the matrimonial home to visit his child. The Supreme Court stated that  as long as the marriage is still valid, each spouse has the right to prevent third parties from disturbing marital and family life. The decisive criterion is not necessarily whether the marriage has broken down, because the law protects the marriage per se and the breakdown does not annul the mutual obligations of the spouses. However, in this case, the interest of the third party in wanting to visit his daughter was more worthy of protection than the interest of the husband in not wanting to receive such a visit.

In summary, it can be said that the mutual obligations of the spouses do not automatically cease even through the relationship has taken a wrong turn. However, an incurably broken marriage is not worthy of protection to the same extent as an intact marriage.

Your experts