Beiträge zur Rechtsgeschichte Österreichs 1 / 2012, pp. 219-232, 2012/08/02
Eherecht 1811 bis 2011 - Historische Entwicklungen und aktuelle Herausforderungen
Aside from the principle of irretrievable breakdown, the principle of fault-based liability is one of the two primary principles of Austrian divorce law. Based on the applicable principle of fault-based liability, a spouse can impose an immediate divorce against the will of the other spouse only if the marriage has irretrievably broken down due to a severe violation of the marriage contract. Otherwise the spouse intending to divorce has to wait until the require- ments for a divorce due to an irretrievable breakdown are in place, in particular a severing of the marriage bond for three years (in special hardship cases up to six years). The question as to which of the two spouses is at fault for the failure of the marriage also impacts the consequences of divorce, in particular the claims of the divorced spouses with regard to maintenance and social insurance. Since, according to available statistics, male spouses far more frequently commit severe violations of the marriage contract than female spouses, and women, due to the housekeeping and child-rearing that they undertake with far greater frequency, are significantly more often dependent on maintenance than men, an elimination of the principle of fault-based liability from Austrian divorce law would have a generally disadvantageous effect for women with regard to gender relations.