Beiträge zur Rechtsgeschichte Österreichs, 2. Jahrgang, Heft 1/2012

The marriage law of the ABGB was subdivided insofar, as some provisions should be applied for all married couples, some only to Catholics, some only to non catholic Christians (Protestants and Orthodox Christians) and some only to Jews. This article contains an overview on the most important marriage-provisions of the ABGB and on the de- velopment of marriage law until the Revolution of 1848. Seen from different points of view this development was marked by a catholic “Restauration”. Most provisions of the ABGB belonging to the marriage law were abolished by the Marriage Law of 1938, which was passed during the period of National Socialism. The abolished ABGB- provisions had referred to the legal preconditions and the procedure of marriages, but also to their dissolution.

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This article deals with the modifications of the “Austrian monarchical” matrimonial law (divided into three reli- gious denominations; no compulsory civil marriage; patriarchal, committed to a middle-class family model; moulded on denominational ideals; obvious in the absence of a law of divorce for Roman Catholics) from 1919 to 1978. Dis- cussions about reform proved without results until 1938 and the so-called “Sever-Ehen” led to the frequently quoted “Marriage Chaos” during the First Republic. The introduction of the German matrimonial law resulted in an im- portant move towards modernisation (non-denominational matrimonial law; compulsory civil marriage). Further discussions about change proved successful only after the abolition of the conservative-Catholic and authoritarian- socialistic paradigm (fundamental reform of Family Law).

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This article addresses the question as to how best to characterize the relationship between the image of families pro- moted in the Austrian General Civil Code (ABGB) and the empirically assessable living conditions of families in Austria. The focus is on the instability of families and post-divorce families’ living situations. The relationship bet- ween the normative requirements of family law and the empirical findings of family research is shown to be change- ful. Normative demands in part adhere to empirically and theoretically obsolete concepts (e.g. marriage and house- hold centeredness). In turn, legal norms generated in other areas prove to be ahead of families’ everyday realities (e.g. cooperative role divisions). Examples are drawn upon from the following areas: The arrangement of non- marital parenthood following separation, the settlement of post-divorce parenthood, and arrangements applying to the living realities of single-parent families and stepfamilies. Law will be increasingly called to attune to instability and discontinuous dynamics.

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In tracing the origins of married names, one does not have to travel back very far in legal history. Until the late 18 th century, a surname was not determined by law, but followed the customs and traditions of society. This also applies to the married name, i.e. the name a woman acquires by virtue of marriage. During the Middle Ages, it had become customary for the nobility and for townspeople to add a surname to their Christian name, and it had consequently become common practice to name a woman after her husband. This was, however, a matter of social custom, not of law. In Germany and Austria, laws applying to name changes upon marriage were first seen in the codifications of the Enlightenment. Now it became the law for a woman to adopt her husband’s name on marriage. This was influenced by the perception that as a woman assumed her husband’s social status on marriage she should assume his name as well. European codifications have, however, been divided on the issue of married names from the start and still are. Common surnames for spouses is a concept that laws of German-speaking origin tend to make obligatory, whereas this concept is mostly unknown to jurisdictions following the Napoleonic Code.   It was inevitable for the rules of the German-speaking section to get into conflict with ideas filtering in from sex equality discourse. Further developments in this area are affected by the notion that a woman has equal rights with- in the family. One may discern the following trends: ? Enforcement of formal equality of the sexes in the law of family names, ? Plural naming options upon marriage, ? Devaluation of the married name and the family name in general by having too many options. Sex equality was attained in stages; these are traced by looking at German law.

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The law relating to the use of name was originally dominated by the patriarchal principle, so that only the name of the father was passed on. A married woman generally had to accept the name of her husband. In the seventies the patriarchal system was replaced by the principle of partnership, which also had consequences in the law of names. From now on it was possible to choose the name of the woman as common surname. First, only women were entitled to use double names; due to a decision by the Austrian Constitutional Court in 1985, this right was then formulated gender-neutral. After a historical outline of the law of names a detailed analysis of the current legal situation is provided. This article is not only focused on the law of names in connection with marriage and divorce, but also concerning registered partnerships. Furthermore, the author takes the law of names concerning children into account. Finally, proposals for reform are discussed.

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In recent years, forced marriage increasingly became a focus of attention in public, political and scientific discourses especially with regard to migration processes and the integration of specific migrant communities. Forced marriage is regarded as a form of domestic violence and a human rights violation. This paper scrutinises popular understandings and common scientific definitions of forced marriage by locating it at the intersection of various forms of social inequality in the context of violence and migration. Based on the analysis of interviews with victims and experts, the study identifies traditionalist practices, misinterpretations of religious obligations, socio-economic deprivation, and experiences of discrimination and marginalisation in the context of immigration as the most relevant factors behind forced marriage. We believe that in order to capture the complex interplay of causes and effects of forced marriage one needs a multifaceted approach which 1) questions the existing public and political discourses on e.g. the so called ‘harmful traditional practices’, 2) evaluates the existing intervention and prevention measures, the legal instruments and their implementation (e.g. the Austrian violence protection act or the international trend to raise age limits for marriages with non-European citizens) and 3) continually contrasts these with the experiences of victims and the views of experts.

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The EPG (Act on Registered Partnerships) raises fundamental questions regarding international law, European Union law and human rights. Particular attention must be given to those essential differences relating to the estab- lishment, status and dissolution of the Registered Partnership as well as other fundamental distinctions such as the exclusion of children’s interests, the express prohibition on adoption and the ban of medically assisted reproduction. It is especially critical to note the disproportionate relationship between the package of rights and duties bestowed on the registered partners and the specific reasons for dissolution and consequences thereof. The registered partners need only consider the horizontal axis of the relationship and provide support on this level. But this fails to take into account the fact that society is increasingly dependent on familial solidarity and functioning support networks, and also notably, how it affects the relationship with the children and their perception of self within the (patchwork) family.

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Among institutes of Austrian Civil Law none other oftener was exposed to attempts of amendments than marriage law. In this connection main point of contact was the question if judicial separation of a married state in lifetime of marital partners should be allowed or not. Since 1875 Austria and her confessional discriminating marriage law just was surrounded by states in which marriage was obligatory without religious ceremony, and – independent of confession – judicial separation of  a married state with authority to remarriage was permitted. This took place first of all in Germany and Hungary. In order to give rise to the application of German or Hungarian marriage law – except for possibly changing to protestant confession – for Catholics, who only were separated from table and bed, but intending to do remarriage, it was put up with changing domicile and citizenship – at least for a short time.

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The interwar period was affected by various migration flows, at intrastate level as well as at interstate level. Some of these migrations were voluntary, others were the effect of political events or force. Naturally questions of citizenship and marriage law were linked to these migrations. This paper discusses the consequences concerning citizenship arising out of binational marriages from national and international perspectives. Also, primarily Austrian problems related to citizenship and marriage in the context of migration will be discussed: questions of expulsion, divorce, denationalisation because of political matters and the so called marriages of convenience. Special attention will be paid to relating gender issues.

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Family law in Europe is facing new challenges.   Growing mobility and the increasing internationality of family relations create problems due to the profound differences in national family laws. The Franco-German optional mat- rimonial property regime marks an important initial step in a unification process, since it creates identical family law in two European countries for the first time. However its scope is limited and many uncertainties remain. In contrast, a wholly new model – the European marriage – could allow couples with cross-border elements to avoid such imponderables by choosing an all-encompassing unified legal framework at the moment of celebrating mar- riage, including provisions concerning marriage and its general effects, marital property, divorce and post-marital maintenance. The optional European marriage could contribute to predictability of legal consequences for transna- tional couples whilst preserving diversity in European family law.

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Marriage law is hardly represented in the jurisdiction of the Austrian Supreme Judicial Court in the first half of the 19th century. This is primarily due to the fact that the majority of the population was Roman Catholic, and accord- ing to ecclesiastical law a civil divorce in the modern sense was impossible. In addition, matters of marriage were often solved by mutual agreements in the lowest levels of jurisdiction. Two main topics appear in the few cases: * Matrimonial property: dotal-/paraphernal-property * Cases of separation from table and bed (agreements). Other single cases (eg. the validity of a marriage ceremony in Rome) complete the picture of marriage law im juris- diction.

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Popular legal literature (p.l.l.) is an interesting source for the history of marriage law. It can be used to show devel- opments of legal language, legal systematics and different lines of argumentation in legal practice. As far as legal documents are missing, it can serve as an alternative information source, indicating which legal problems occurred and how they were probably solved. On the other hand the wide-spread p.l.l. influenced practice: laypersons used examples, forms or wording of the p.l.l.. So the p.l.l. reflects reality – e.g. it shows that marriage was not always a romantic affair. In the 19 th century the p.l.l. concentrated on the problems of contraction of marriage in the premarital period (im- pediments, political consent); in the 20 th century the termination of marriage (judicial separation, divorce, post- matrimonial problems) was placed into the foreground. The lasting marriage was only touched (except effects on property).

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This article discusses the various forms of maintenance for spouse throughout the history of the Austrian legal sys- tem.  Maintenance for spouse includes not only the support during the marriage, but includes spousal support after death and divorce as well. The main focus of this article is maintenance for former spouse after divorce. To introduce spouse support after divorce it is necessary to consider the different forms of separation, which have been in force under the Civil Code of 1811 and the Marriage Act of 1938. While the Catholic population, the majority in Austria, were only able to separate from table and bed under the Civil Code 1811, the Marriage Act of 1938 introduced the judicial separation independent of confessions. This article compares the different consequences of separation with respect to maintenance under the Civil Code of 1811 and the Marriage Act of 1938 in its original form and its form today. They have in common that the maintenance for spouse depends on the default of one spouse, although the development of the recent years shows a partly digression from the element of default.

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In Austria during the 1970s extensive reforms in the area of family law were passed. These reforms were adopted unanimously in parliament with one exception. The reform of divorce law, which was carried out in 1978 by the implementation of two new laws, only partly was decided by common agreement. While the new possibility of di- vorce by consent was introduced with the votes of all parties, the new regulations on divorce against the will of the blameless spouse, led not only to the end of consent in parliament. It also evoked protest of the Catholic Church and the Social Democratic Women. The article provides an overview on the historical development of divorce law in Austria until 1945 and the reform process in the Second Republic with a focus on the social and political negotia- tions in the 1970s.

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From the Ehegesetz of 1938 to its reform in 1999, adultery, refusal of reproduction and other matrimonial offences counted as grounds for divorce. With the absolute grounds for divorce, i.e. adultery and the refusal of reproduction, there was no further test on their destructive effects, whereas with the remaining ones, which were known as relative grounds, there had to be a test on whether the offence in question had indeed harmed the marital union. Following the reform of 1999 (Eherechtsänderungsgesetz) only severe matrimonial offences remain as relative grounds for divorce. A matrimonial offence may be any given behaviour of a spouse which undermines the founda- tion of their marriage. Thus, not just unethical behaviour such as insults or physical assaults but also too close (though not sexual) contact with a person of the opposite sex may under certain circumstances constitute a ground for divorce. In the past few years the claim of ‘unloving behaviour’, which may refer to a great variety of practices, has increas- ingly been brought forward in courts. For the judges it is getting more and more difficult to establish which of those should be regarded as a severe offence.

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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.

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