5 What are the consequences of divorce/separation?

5.1. How is the property (rights in rem) divided?

In the absence of an agreement to the contrary, the principle of the separation of property is maintained until divorce (on the advance agreement, which takes effect as of the divorce, see above 3.1.). The spouses can divide the marital property of daily use and the marital savings through agreement or by filing a request - within one year of the divorce becoming final - for a decision of the court (§§ 85, 95 EheG).
The marital property of daily use and the marital savings are subject to the division (§ 81 Abs 1 EheG). ‘Marital property of daily use’ are the tangible objects that served the use of both spouses during the joint marital life (§ 81 para. 2 EheG). This also includes the marital home and the household effects. Rights can also form part of the marital property of daily use (e.g. rights in rem to immovable property) (§ 86 para. 1 EheG). ‘Marital savings’ are savings or assets which the spouses accumulated during the joint marital life and which are usually intended for realisation (§ 81 para. 3 EheG).
Excluded from the division are assets that a spouse brought into the marriage, inherited or which he/she received as a gift from a third party, assets that serve the personal use of one spouse alone or the exercise of his/her profession as well as assets that belong to a company or are shares in a company, insofar as they are not purely investments (§ 82 EheG). The marital home and the household effects are - even when one spouse brought them into the marriage, or inherited or received them as a gift - to be included in the division when the spouses agree to this, when the other spouse is dependent on their continued use in order to assure the necessities of his/her life, or when a common child has a considerable need for their continued use (§ 82 para. 2 EheG). The inclusion of the marital home in the division in accordance with § 82 paragraph 2 can be excluded via an agreement of the spouses (§ 87 para. 1 EheG)
The property subject to the division is to be equitably divided. In so doing, the quality and extent of the contribution of each spouse to the acquisition of the property and the well-being of the children are to be taken into consideration (§ 83 para. 1 EheG).
If the spouses have concluded a marriage contract and the assets belonging to the community of property are not subject to the division under §§ 81et seq EheG, in the absence of any other agreement the fate of the marriage contract depends on the fault of the spouses with regard to the divorce. If there is no difference in the degree of fault, each spouse gets back what he/she brought in. In the event of a preponderance of fault of one spouse, the other can choose whether the marriage contract should be annulled or whether a 50-50 division as in the case of death of one spouse should take place (§ 1266 ABGB). The right created by a contract of inheritance remains intact in favour of the faultless spouse (§ 1266 ABGB).

5.2. Who is liable for existing debts after the divorce/separation?

Debts that are closely connected with the marital property of daily use or the marital savings or which are connected with the marital life expenditure are to be estimated in the division (§ 81 para. 1 EheG) (§ 83 para. 1 EheG). If there is no agreement between the spouses on this, the court can determine which spouse shall be obliged to pay the debts (§ 92 EheG).

5.3. Does one spouse have a claim to an equalisation payment?

The division should take place primarily through the allocation of assets. Only if it is impossible to achieve a just result in this way, the court can order an equalisation payment to the disadvantaged spouse (§ 94 para. 1 EheG).