Marriage is a contract. And one that is hostile to dissolution. Marriage is not just a love story. At best, you love each other when you are married, but even if you don’t love each other, the legal rules apply. The marital arrangements have to do with mutual responsibilities and also with money. These obligations do not automatically end with divorce and certainly not with separation. When people decide against marriage, and rather enter into a long-term partnership, the situation is different. The legislator does not want to impose the consequences of a contract on people who never wanted to enter into. In principle, this makes sense.
What is a long-term partnership?
There is no generally valid definition of cohabitation in the Austrian legal system. In the course of time, however, case law has developed certain criteria as to when a cohabitation exists. If there is an (intended) long-term residential/economic and sexual community, one speaks of a cohabitation in the legal sense. These three criteria do not have to be rigid. It is a case-by-case assessment. It is above all a question of the inner attitude of the persons to each other and their feeling of belonging together. The cohabitation is not a legal vacuum, but in comparison to marriage there are few specific regulations. If a dispute arises after the dissolution of a cohabitation or partnership, e.g. over money, one often has to rely on general civil law.
Mutual claims in or after termination of a long-term partnership?
It is a common misconception that cohabitants also have claims against each other, as in a marriage, if they have lived “marriage-like” for a long time. However, this is not correct. Firstly, a cohabitation can be dissolved at any time, unilaterally, and secondly, no maintenance claim can be derived from a cohabitation. Also, unlike in marriage, there is no fidelity or support obligation.
what about the money in a long-term partnership
Unlike after a marriage, when a cohabitation is dissolved, there is no right to have any joint assets divided up. Even after the dissolution of the cohabitation, each person remains the owner of what was saved during the cohabitation. For this reason, it is advisable to keep track of who has paid what and to document this during the cohabitation. If something is only purchased with the money of one partner, any bills should also be made out in the name of this person. It sounds unromantic and it is, it is about preserving evidence. In a marriage, money has no role to play. In a cohabiting relationship it does, and in the event of a separation it is precisely who has paid what that matters.
Situation with shared property
It is not uncommon for cohabiting partners to want to settle down together and purchase real estate together. If both persons are registered in the land register, they are legally to be classified as co-owners. This means that after a separation it should basically be decided by mutual agreement who keeps the property and who or how the other person is paid out. This can be problematic because one is dependent on an agreement with the ex-partner. If an agreement fails, the competent courts have to be seized, by means of an action for partition. This is often a lengthy and expensive procedure. If only one person is registered in the land register of a property, but both partners have contributed financially, the situation is often even more difficult.
Way out: Partnership agreement
If there is a contractual arrangement, e.g. in the form of a partnership agreement, the matter is clearer. Especially if a property is purchased together in a partnership, it is advisable to contractually secure a fair solution for both sides. Who should take over the house or flat, how should one person be paid out, etc.? Even if you have children together and one person has to take a longer break because of the children, a partnership agreement can be useful to cushion and compensate for any financial disadvantages.
