For all legal actions brought, judgments given and acts issued until 28 January 2019, the division of property after a divorce under §§ 81et seq EheG and §§ 24et seq EPG counts among the non-contested matrimonial matters. Austrian courts have international jurisdiction for such proceedings if a spouse/partner is an Austrian national or has his/her habitual residence within the country (§ 114a para. 4 Jurisdiktionsnorm, JN). Both subject matter and local jurisdiction are held by the district court (§ 104a JN), within whose district the spouses/partners had their last common habitual residence, subsidiarily the district court of the habitual residence of the defendant (§§ 114a para. 1 in conjunction with 76 para. 1 JN). If a divorce proceeding is already pending before a court and the hearings in the first instance have not yet been completed, this court has also jurisdiction for the division of the matrimonial property (§§ 114a para. 3 in conjunction with 76 para. 1 JN).

For all legal actions brought, judgments given and acts issued on or after 29 January 2019, regardless of the date of marriage, Council Regulation (EU) No 2016/1103 of 24 June 2016 will apply.

This Regulation provides that the competent authorities will be as follows:

- For matters relating to the matrimonial regime in the event of the death of one of the spouses, jurisdiction lies with the court competent for the succession (Art. 4).

- In matters relating to the matrimonial property regime in the event of an application for divorce, legal separation or marriage annulment, jurisdiction generally falls to the court competent to rule on the matrimonial dispute.

- In other cases, the spouses may agree that jurisdiction shall lie with the Member State whose law is applicable or with the Member State where the marriage is concluded. Such an agreement must be in writing, dated and signed by the parties. In the absence of an agreement, the courts of the Member State shall, as a general rule, have jurisdiction to settle any question relating to their matrimonial property regime other than in the event of the death of one of the spouses or a matrimonial dispute:

• of the spouses’ common habitual residence at the time the court is seised; or failing that
• of the spouses’ last habitual residence, insofar as one of them still resides there; or failing that
• of the habitual residence of the respondent; or failing that
• of the spouses’ common nationality.

With the exception of any litigation, Austrian notaries are not bound by these rules of jurisdiction and may therefore act freely, for example in drafting a marriage contract or a choice of law agreement.

Print this topic

back to top