Couples in Austria

Couples in Austria

Couples in Austria

Last updated on: 11.05.2022
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1.1. Which law is applicable to a couple´s property? Which criteria/rules are used to determine the applicable law? Which international agreements have to be observed in relation to certain countries?

For marriages concluded before 28 January 2019, Austrian provisions of the IPRG apply. If the spouses themselves do not make a choice of law, the law applicable to the personal legal effects of the marriage at the time of the marriage shall apply (§ 19 Internationales Privatrechts-Gesetz, IPRG). This corresponds to the common or, in the absence thereof, the last common personal statute (= nationality), provided that one of the spouses has retained this (§ 18 Para. 1 Z 1 IPRG). Otherwise, the law of the state in which both spouses have their habitual residence shall apply or, in the absence thereof, the law of the state in which the two had their last common habitual residence, provided that one of the spouses has retained this (§ 18 Para. 1 Z 2 IPRG). If the spouses never had neither a common personal statute nor a common habitual residence, the law of the state to which they have the closest relation will be applied (§ 1 IPRG).

Following the adoption of European Regulation (EU) 2016/1103 of 24 June 2016, new rules for determining the applicable law to marriages concluded from 29 January 2019, as well as to marriages concluded before the entry into force if the spouses have made a choice of law for their matrimonial property regime from 29 January 2019.

In the absence of a choice of law, Article 26 of the above Regulation sets out the hierarchy of connecting factors to determine the applicable law, as follows.

In the absence of choice of law, Article 26 sets out the hierarchy of connecting factors to determine the applicable law, as follows.

  • The spouses’ first common habitual residence after the conclusion of the marriage.
  • Failing that, the spouses’ common nationality at the time of conclusion of the marriage. This criterion cannot be used when the spouses have several common nationalities.
  • Failing that, the law of the State with which the spouses jointly have the closest connection at the time of conclusion of the marriage.


Exceptionally, the competent judicial authority may decide, at the request of one of the spouses, that the law of a State other than the state in which the spouses have their common habitual residence after the conclusion of the marriage shall apply (Art. 22.3).

1.2. Do the spouses have the option of choosing the applicable law? If so, what are the principles governing the choice of law (e.g. selectable legal systems, formal requirements, retroactive effect)?

Until 28 January 2019, the spouses are free to choose under Austrian law which law is to be applied to their property. Insofar as this does not violate the Austrian ordre public (§ 6 IPRG), the spouses are unrestricted in this choice - the chosen law does not have to be related to the marriage. The choice of law must be made expressly (§ 19 IPRG).

For choices of law made on or after January 29, 2019, spouses may also choose the law applicable to their assets. However, only the law of the state in which the spouses or one of them has their habitual residence at the time of the choice of law or the law of a state of which one of the spouses is a national at the time of the choice of law may be chosen (Art 22 of the Regulation). Such a choice of law can be made with legal effect in accordance with the formal requirements of Art. 23 of the Regulation, i.e. it must be in writing, dated and signed by both spouses. If the choice of law is made as part of a marriage contract, it must be done in the form of a notarial act. Unless the spouses agree otherwise, any choice made during the marriage as to the law applicable to the matrimonial property regime shall apply only for the future and without prejudice to the rights of third parties.