Is adultery justified

The "Top 25" reasons for divorce (misconduct). When is the divorce suit justified?

Mask requirement, quarantine, home office, entry bans, personal restrictions, restriction of freedom of movement, etc. The "Corona crisis" with its many new and unfamiliar professional and personal restrictions is also a challenge for all types of human relationships. In many partnership relationships, it has already led to “bad air” and marital crises. According to the media, the number of people willing to divorce is skyrocketing, which also corresponds to my perceptions from practice.

Divorce due to the fault of a partner

If the spouses cannot agree on a mutual divorce, the "divorce-willing" spouse can against the will of the other only end the marriage for important reasons with an action for divorce. A prerequisite for a divorce suit is that the spouse has a so-called serious misconduct has set (so-called divorce due to fault). Today, the marriage law (EheG) no longer explicitly speaks of (absolute) reasons for divorce (as it once did) but of misconduct.

The marriage law goes from Disruption principle from: a serious misconduct must also be to disruption married so that the marriage may be divorced by the court.

Marital misconduct is such behavior that against the obligations arising from the marriage directs.

The most important of these "marital duties" are: the obligation to have a full marital partnership, to live together and to manage the household, but also the maintenance obligation, the participation in the acquisition of the other, the loyalty obligation, the obligation to respectful encounters as well as the obligation to mutual assistance.

What serious misconduct (reasons for divorce) are there?

The main legal provision for divorce on the basis of fault is Section 49 Marriage Act. She provides one General clause which basically includes all conceivable reasons for divorce (without listing them individually, which would be impractical due to the multitude of possibilities).

The marriage law explicitly mentions in its section 49 only 3 reasons, the one serious misconduct mean:

"There is serious misconduct in marriage, in particular, if one spouse broke the marriage has or dinflicted physical violence or severe emotional distress on another Has."

The jurisprudence recognizes but also any behavior of a spouse as serious misconduct that is directed against the nature of the marriage and the duties connected with it and, due to the guilt of the spouse, is so serious that the other spouse has the Continuation of the marriage unbearable is made.

With it the misconduct as a reason for divorce can be used, so it must objectively difficult be. When assessing the severity is basically on Average people but also to take into account the social position (or the "milieu"). So - as so often - depending on the circumstances of the individual case.

A slight misconduct so is going for a divorce suit Not sufficient. However, this can be considered as a reason for divorce if you have an llonger period is put away and so at the same time to one attrition of the other spouse.

But marriage misconduct is not the only thing active actions to count, but also Omissions (such as the concealment of important and rather relevant circumstances).

Serious misconduct in marriage are, for example:

  1. Adultery: The affair as a reason for divorce? Again and again I hear that an affair is no longer a reason for divorce. This opinion is simply incorrect. The 1999 Marriage Law Amendment Act did not remove adultery as a reason for divorce. So adultery is still a serious misconduct and leads to divorce if it has contributed to the breakdown of the marriage. So adultery can still lead to divorce.
  2. physical abuse or the infliction of emotional distress
  3. severe insults and psychological terror
  4. Unjustified move out of the shared apartment ("malicious departure") tip: Get them urgently written Your spouse's consent for temporary separation before they simply move out. A mistake that happens very often and can have negative consequences.
  5. "Throwing out" from the married apartment
  6. Breach of maintenance obligation
  7. baseless jealousy
  8. Quarreling, hysteria
  9. Neglect of housekeeping
  10. Breach of the duty to manage the household jointly if both spouses are employed
  11. persistent loveless and hostile behavior or persistent silence
  12. persistent and unfounded refusal to have sexual intercourse despite being asked to do so
  13. but also too frequent sexual demands or excessive gender demands on the spouse
  14. Violations of the Consent requirementsuch as secret withdrawals from the account, secret major investments, concealment of income or savings, secret abortion ...
  15. Violations of the duty of decent encountersuch as alcoholism, exclusion of the partner from leisure activities ...
  16. Report the spouse to the tax office
  17. Moving out of the bedroom or locking a spouse out of the apartment or the shared bedroom, etc.
  18. Brothel visits
  19. constant righteousness or notorious nagging
  20. Embarrassing exposure of the spouse
  21. Religious and political fanaticism
  22. Groundless jealousy
  23. Dangerous threats, verbal abuse and disrespect
  24. Inadmissible surveillance (installation of a surveillance camera, etc.)
  25. Communication of intimate details from married life to third parties
Danger: Must have a divorce suit on grounds of fault in court within 6 months be brought in, otherwise the divorce law is extinguished (Section 57 Marriage Act). Of course, there is no right to an action for divorce even after a forgiveness / reconciliation with the spouse (Section 56 Marriage Act).
Further legal reasons for divorce in Austria

In addition to serious misconduct in marriage, in Austria you can also otherlegal grounds for divorce lead to a divorce. Something like that Mental illness or mental disorder, contagious or nauseating disease.
Mentally disturbed behavior: According to jurisprudence, this includes psychoneurosis, obsessive-compulsive disorder, melancholy, hysteria, delusional jealousy, mentally conditioned impotence and frigidity, and the marriage can also be terminated because of drug and drug addiction to attribute the breakdown to those reasons for divorce is.
The same applies in the case of a Mental illness or a life-threatening one contagious disease (e.g. leprosy; the Covid 19 virus cannot be subsumed under it due to the relatively short course of the disease) or nauseating disease, which a continuation of the marriage impossible do.
exception: is the so-called "Hardship clause ". This means that the reasons for divorce mentioned under this point (e.g. because of mental illness, etc.) cannot divorce the marriage if the marriage is dissolved the other spouses exceptionally hard would hit.

Living apart without serious misconduct, what then?

Have the spouses grown apart withoutthat one of them the Sguilty of the failure of the marriage can be accused, a friendly divorce should be the goal. Because a division of fault is fundamentally not possible on this basis.

In such a constellation one spouse against the will of the other only enforce the divorce if the Hdomestic community between the spouses for at least 3 years is canceled.

Also the Spouse, who at the failure of the marriage "fault"Is, can only force the divorce against the will of the" innocent "partner if the domestic community for at least 3 years is canceled.

In practice, however, despite these formal (time) hurdles (at least with a certain understanding and reasonable negotiations), there is still often the chance of an early - then amicable - divorce!

Was the domestic community (housing, business and sex community) of the two spouses actually for canceled for more than 3 years, that applies Marriage legally disrupted as incurable and can be divorced. JHowever, the two spouses do not have to live in separate apartments, but can still stay together in the marital home.

In my opinion, there is an urgent need for reform in this 3-year period.

About the legal consequences, which are connected with a divorce "culpable" (enforced in court) by a spouse, I will report in one of our next episodes.

If your marriage is so deeply shattered that you see no other way out than a divorce, let a divorce specialist analyze your personal situation (because no marriage is comparable to another!) At an early stage in order to avoid serious (legal and financial) mistakes .
I wish you all a nice spring day with your loved ones!
Note: The list of the 25 serious misconduct in marriage (reasons for divorce) does not come from any official statistics and is also not representative, but merely a subjective selection by the author on the basis of the diverse Austrian case law. The list is also not exhaustive and could of course be continued.

Sight words: Reasons for divorce, serious misconduct, divorce due to negligence, consensual divorce, moving out of the marital home, adultery, dissolution of the marital union, divorce due to contagious or nauseating disease, hardship clause, forgiveness, filing for divorce proceedings, 6 months deadline.