Family law
During marriage each spouse keeps what is theirs. On divorce, what the family actually used gets divided — including, for the unprepared, the home itself.
In short
- Austria's default matrimonial regime is separation of property: each spouse owns, manages and disposes of their own assets, and is not liable for the other's debts — apart from everyday household transactions entered into by a spouse who runs the household and has no income of their own.
- A marriage contract, and any advance agreement on marital savings or the marital home, requires a notarial deed; entered in the land register, it binds third parties too.
- On divorce, marital assets and marital savings are divided. Inheritances, third-party gifts, pre-marital, personal, professional and business assets stay outside, however the family used them.
- The family home is the classic trap: a home the couple acquired and used together is divided whoever holds title — and even a home one spouse brought in or inherited can be drawn in where the other spouse or a joint child depends on it.
- Courts can depart from an advance agreement, but only so far as it leaves one spouse so unfairly disadvantaged that holding them to it would be unreasonable.
- International couples can often choose the law governing their property under EU rules in force since 2019.
Separation of property during marriage
Austrian law starts from a principle that suits wealth well: marriage as such does not merge property. Assets a spouse brings into the marriage, and assets either spouse acquires during it, remain that spouse's sole property. Each spouse manages and disposes of their own assets freely, and neither is liable for debts the other incurs — the one statutory exception being everyday household transactions entered into by a spouse who runs the household and has no income of their own, for which both spouses are jointly and severally liable. There is no community of property unless the couple deliberately creates one, and no automatic accrual or equalisation regime of the German kind operating in the background.
The couple can modify this framework by matrimonial agreement — for instance restricting the sale or mortgaging of particular assets in favour of the other spouse. Where such an agreement concerns real estate, it can be entered in the Grundbuch, Austria's public land register, and from that point it is effective against third parties, not merely between the spouses. How the land register works in an acquisition context is described on the purchase process and costs page.
The calm of the default regime is, however, only half the picture. Separation of property governs the marriage; a different and more intrusive set of rules governs its end.
Marriage contracts and prenuptial agreements
Because the statutory division on divorce can reach further than newcomers expect, marriage contracts do real work in Austria. A marriage contract in the strict sense, and any advance agreement on the division of marital savings or of the marital home, must be concluded as a notarial deed (Notariatsakt) to be valid; only an advance agreement about the remaining household property is good in simple written form. Since almost everything worth settling falls on the notarial side, a private written agreement, however carefully drafted, is in practice not enough. Within that form, spouses and engaged couples can reorder a great deal: define what counts as marital property, ring-fence a business or an expected inheritance, fix how specific assets — above all the home — would be dealt with, and settle maintenance questions in advance.
Two caveats belong in every briefing. First, stamp duty: marriage contracts and prenuptial agreements are among the transactions on which Austria levies stamp duty when a duly signed document has an Austrian nexus — but the headings differ. The 1% rate for marriage contracts bites only on assets actually subjected to a community of property, so an agreement that leaves separation of property intact has no base under that heading at all, and real estate transferred by such a contract is taxed under the real estate transfer tax rules instead. An agreement that settles in advance how property or maintenance would be dealt with is instead treated as an out-of-court settlement, at 2% of the value of what each side undertakes to give. Both rates sit within the general 0.8–2% range described on the wealth tax and other taxes page. With careful structuring of where and how the document is executed, the duty can in many cases be legitimately avoided — a detail worth settling before signature, not after. Second, fairness review: an Austrian divorce court may depart from an advance agreement, but only so far as it leaves one spouse so unfairly disadvantaged that holding them to it would be unreasonable. An agreement signed under time pressure a week before the wedding, leaving one side with nothing, is precisely the kind a court will not feel bound by. Agreements negotiated in good time, with both sides advised, hold up far better.
Couples arriving with a foreign prenuptial agreement should treat it as raw material rather than protection: whether it binds an Austrian court depends on the law applicable to the couple's property and on Austrian standards of form and fairness, and it is common to reinforce a foreign agreement with an Austrian notarial deed after the move.
What divorce changes
On divorce, the separation principle gives way. Everything the spouses acquired together as a family during the marriage is divided between them — in the statutory language, the marital assets and the marital savings. Marital assets are the movable and immovable things that served the use of both spouses: household goods and, above all, the marital home. Marital savings are the savings accumulated during the marriage, whatever form they have taken. The division is made equitably; in long marriages it tends in practice towards equal shares.
A defined class of assets stays outside the division — and it is a generous class, which is why Austria is not a hostile jurisdiction for wealth entering a marriage.
| Asset category | Divided on divorce? | Notes |
|---|---|---|
| Marital home acquired during the marriage | Yes | Served both spouses' use — divided in principle regardless of legal ownership |
| Household goods | Yes | Core marital assets |
| Savings accumulated during the marriage | Yes | Whatever their current form |
| Assets brought into the marriage | No | Outside the division however the family used them — except a home (see below) |
| Inheritances and gifts from third parties | No | Outside the division however the family used them — except a home (see below) |
| Assets serving one spouse's personal use | No | Personal effects and comparable items |
| Assets serving one spouse's profession | No | Practice, equipment, professional holdings |
| Company assets and shareholdings | No | Protects entrepreneurial wealth — but shares held as mere investments are divided, and marital value put into a business is brought back in |
The exclusions are firmer than newcomers expect. What decides the hard cases is not how the family used an asset but when and how it was acquired — and one narrow statutory exception for the home, which deserves its own section.
The family-home trap
Buy the family home after the wedding and it becomes a marital asset: on divorce it is divided regardless of which spouse holds title or whose money paid for it. A home one spouse inherited or brought into the marriage stays out — but only until the other spouse or a joint child depends on staying there.
An inheritance, a third-party gift or pre-marital property does not become divisible simply because the family used it for years — there is no general rule that dedication to family life strips the protection away. What converts separate wealth into divisible wealth is acquisition during the marriage. Separate money spent on a house the couple then live in together buys an asset that served the use of both spouses, and that asset is divided whoever is on the title. For a home that was brought in, inherited or given by a third party there is a second and much narrower route back in: it applies where the spouses agreed to it, where the other spouse depends on continued use to secure their basic living needs, or where a joint child has a need worth taking into account. The Supreme Court reads that living-needs test strictly — it is aimed at vital questions of existence, such as the threat of prolonged homelessness, not at mere inconvenience.
For a family relocating to Vienna and buying a significant home, the planning consequence is concrete: decide before purchase how the home should be owned and what a marriage contract should say about it, rather than litigating it years later. The same reasoning extends to holiday property bought during the marriage and used by the family, and to art or collections acquired during it. Where substantial wealth should remain structurally outside any future division, couples sometimes combine a marriage contract with holding arrangements described on the wealth and succession hub — including, for long-horizon family wealth, the Austrian private foundation.
Registered partnership, international couples, maintenance
Marriage and registered partnership are both open to all couples in Austria, and for property purposes the registered partnership tracks marriage: separation of property during the partnership, division of partnership assets and savings on dissolution, and the same scope for notarial agreements.
International couples have an extra planning lever. Under the EU matrimonial property regime rules that Austria applies to marriages concluded — or choices of law made — on or after 29 January 2019, the property regime of a cross-border couple is governed by default by the law of their first common habitual residence after marrying, but the spouses may instead choose the law of a state of either spouse's nationality or habitual residence. A couple moving to Austria can therefore often decide, deliberately and in writing, whether Austrian rules or those of their home jurisdiction govern their property — a choice that should be made together with the succession-law election described on the succession law and wills page, because the two regimes interlock: what a divorce court would divide and what a probate court would distribute are different questions answered by different laws. Both belong in the pre-immigration review, alongside the point that gratuitous transfers between spouses, while free of gift tax, can trigger the notification and transfer-tax rules on the inheritance and gift tax page.
Maintenance, in one paragraph: during the marriage the spouses owe each other contribution according to their means and the arrangement of their household. After divorce, maintenance depends principally on the parties' means, the arrangement of the marriage and — Austria retains fault-based divorce — on which spouse was predominantly responsible for the breakdown. In practice, high-value divorces are resolved by agreement, and maintenance is one of the points a well-drafted marriage contract addresses in advance.
Questions on this page
Is a foreign prenuptial agreement recognised in Austria?
Often in principle, but never automatically. Recognition depends on the law applicable to the couple's property and on Austrian formal and fairness standards — courts can deviate from agreements that unfairly discriminate against one spouse. Foreign agreements should be reviewed, and where necessary reinforced, on relocation.
Do marriage contracts require a notary in Austria?
Yes, for the parts that matter. A marriage contract in the strict sense, and any advance agreement on the division of marital savings or of the marital home, must be concluded as a notarial deed to be valid; simple written form suffices only for the remaining household property. Where the contract concerns real estate, it can also be entered in the land register, which makes it effective against third parties.
What happens to the family home if we divorce in Austria?
A home the couple acquired during the marriage and used together is divided as a marital asset — in principle regardless of which spouse holds title. A house one spouse brought into the marriage or inherited is different: it is drawn into the division only where the spouses agreed to that, where the other spouse depends on continued use to secure their basic living needs, or where a joint child has a need worth taking into account.
Is property I owned before the marriage divided on divorce?
Generally no. The division covers assets the spouses used together and savings accumulated during the marriage; pre-marital property, inheritances and third-party gifts stay outside, however the family used them. The main exception is the marital home and household goods, which can be drawn back in where the other spouse or a joint child depends on continued use.
Does Austria recognise registered partnerships?
Yes. Both marriage and registered partnership are open to all couples in Austria, and the property consequences of a registered partnership track those of marriage.
Considering a move to Austria?
Tell us where you stand — the country you are leaving, the shape of your family and your assets, and when you plan to move. We advise on the legal and tax consequences of relocating to Austria and coordinate with advisers in the country of departure.
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