People who marry enter into a contract. The law says that two people live in an inseparable community and provide mutual assistance. Whoever breaks the contract or does not behave according to the regulations of the marriage law will be asked to pay in the worst case. When we speak of marital duties, this can mean different things. The law knows, for example, the duty to live together, to meet each other decently and to be faithful. If you feel abandoned, or the other person is not very faithful, it can be very depressing. However, understanding or fidelity cannot be enforced in court. It is also not possible to sue someone to force them to end an affair or to move back into the marital home. However, all these things can be considered marital misconduct in divorce proceedings. In Austria, an infidelity is no longer an absolute ground for divorce, but contrary to a widespread misunderstanding, it is still a serious marital fault.
In Austria, the principle of fault still applies. This means: If a person violates marital duties and it is established in divorce proceedings that this led to the breakdown of the relationship, it can be expensive.
DO THE MARITAL OBLIGATIONS INCLUDE THE OBLIGATION TO HAVE A SEXUAL ENCOUNTER?
Colloquially, there is also another meaning of marital duties. Of course, we are talking about the obligation to have sexual intercourse. What is the legal position on this? In marriage, the matter of sex is a double-edged affair. On the one hand, the right to sexual self-determination also applies in marriage. This means that there is no legal obligation to have sex. Anyone who wants to insist on a certain frequency of intimate moments within a marriage is also on the wrong track. But: If a person persistently refuses sexual intercourse for no reason, this can turn in a marital misconduct. So if there is no reason why a person refuses sexual intercourse with their partner, it can become a (legal) problem. According to case law, valid reasons for refusal could be, for example, mental or physical illness. Or also if the partner cheats (several times), neglects his or her own personal hygiene or causes offenses. In any case, an occasional refusal of sexual intercourse does not constitute marital misconduct.
Can you outsource marital duties and agree on sexual freedom in marriage?
In Austria there is a duty of fidelity in marriage. According to the motto: You get your appetite somewhere else, you eat at home. However, a married couple can decide by mutual consent that the concept of traditional marriage is not suitable for them. So, in principle, it is also possible to agree on sexual freedom in a marriage. In other words, the concept of an open relationship is also conceivable in a marriage. While in the past case law classified such agreements as immoral and invalid, a differentiation is now made: If sexual freedom has been demonstrably agreed, extramarital love affairs are not reproachable in divorce proceedings. For example, if a married couple has agreed that sexual fidelity is suspended during a holiday or a stay abroad, a divorce action cannot be brought thereafter on the grounds of a breach of fidelity. It should be noted, however, that according to case law, the agreement of sexual freedom is not binding and can be revoked at any time – even unilaterally.
So if one person has changed his or her mind and wants to resume a monogamous two-way relationship, the other person cannot object. If extramarital sexual contacts continue, this may then become relevant in any divorce proceedings that may follow.