ARTICLES and NOTES - Notarius International

Notarius International 3-4/2002 T. Antenreiter, National Report Austria 137
be an owner partnership consisting of any two natural
persons 18 . In addition, the Law permits residential property
ownership to be created only if it is created in the
whole building, so that so-called “mixed tenure houses”
(Mischhäuser; simple co-ownership along with lease
agreements on the one hand and residential property
ownership on the other hand) should gradually disappear.
The Law on Building Rights allows a piece of land to
be burdened with the real, transferable and inheritable
right to have a building structure on or under the surface
of the ground (building right or building lease) 19 . A
building right can be created for a minimum period of ten
years and a maximum of 100 years and is registered in
the Land Register by means of a separate building right
insertion. As a rule the owner of the burdened land receives
annual building interest. The owner of the building
right is also owner of the building erected on the land
as an appurtenance, but it passes to the owner of the land
when the building right expires 20 .
3.5. Restricted real interests in land
The restricted real interests in land recognised by Austrian
law are rights of lien (mortgage) 21 , easements (also
called servitudes, which oblige the owner of the land
merely to tolerate something or to refrain from doing
something, not to take any active measures; this includes,
for instance, rights of vehicular access, rights of way,
wayleaves for pipes, cables etc., occupancy rights and
usufructary rights) 22 and charges on land (Reallasten –
representing personal liability on the part of the current
owner of the land to perform, as a rule, recurring services,
such as, for instance, providing for a retired farmer
after transfer of the farm to a descendant (Ausgedingeleistungen)
23 together with other rights which, on the basis
of special statutory directive, can be registered in the
Land Register (leasing rights 24 , rights of pre-emption and
rights to repurchase 25 , prohibitions on selling or burdening
the property 26 ).
4. Family law
4.1. Matrimonial law and co-habitation relationships
4.1.1. Marriage and divorce
Austrian law regulates matters relating to marriage and
divorce in the General Civil Code 27 and in the Matrimonial
Law (Ehegesetz: EheG). A marriage is always
dissolved by a court decision 28 , but there is the possibility
of simplified divorce by mutual consent in the case
of a joint petition by both spouses and prior separation for
at least six months 29 .
4.1.2. Statutory matrimonial property regime, matrimonial
property regime of choice and marriage contract
The statutory matrimonial property regime during the
currency of a marriage is the system of separation of
property, which means that each spouse keeps the assets
brought into the marriage by him or her, is sole owner of
the assets acquired by him or her and is sole debtor as regards
his/her creditors and sole creditor as regards his/her
debtors 30 . In principle there are no reciprocal consent requirements
with regard to management of the assets, but
the spouse liable to provide maintenance, who has authority
to dispose of the matrimonial home, must refrain
from doing anything and take all necessary precautions to
ensure that the spouse who stays at home does not lose
it 31 .
The spouses are, however, free to agree another matrimonial
property regime (inter vivos matrimonial
property regime, matrimonial property regime mortis
causa, matrimonial property regime of joint ownership of
subsequently acquired property), for which the drawing
up of a notarial instrument is stipulated 32 .
If no agreement to the contrary is reached, in principle
the system of separation of property continues also in the
event of a divorce, but in this event, on the application of
even only one of the spouses, all the matrimonial assets
will be shared out between the spouses in accordance
with specified apportionment principles 33 . The apportionment
of the assets is carried out by the divorce judge
on a no-fault basis taking account of principles of fairness.
There are no formal requirements in relation to
contractual agreements reached in the course of the divorce
concerning the consequences of the divorce, but
they are subject to inspection as to their contents by the
divorce judge.
Contractual agreements which purportedly settle the
apportionment of assets in advance are only permissible
to a limited degree. In accordance with the provisions of
the Matrimonial Law the claim for apportionment of the
matrimonial assets for everyday use (including the matrimonial
home) cannot be waived effectively in advance
and any agreement in advance concerning apportionment
of the matrimonial savings requires to be in the form of a
notarial instrument in order to be legally effective as a
matrimonial covenant 34 .
4.1.3. Maintenance for spouse
Under Austrian law spouses can reach agreement about
the maintenance to be provided during the currency of the
marriage 35 and about the obligation to provide mainte-
18 Art. 2 Law on Ownership of Residential Property and Arts. 13ff Law
on Ownership of Residential Property; In contrast, under the former
legal position only an individual (natural or juristic) person or married
couple could be the owner, not, however other combinations of people
(siblings, co-habitees, outside persons).
19 Art. 1 Law on Building Rights
20 Art.9 Law on Building Rights (as a rule in return for compensation)
21 Arts. 447ff ABGB (General Civil Code)
22 Arts. 473 ABGB (General Civil Code)
23 Art. 12 Land Registry Law
24 Art.1095 ABGB (General Civil Code)
25 Arts.1068ff and 1072ff ABGB (General Civil Code)
26 Art.364c ABGB (General Civil Code)
27 Arts. 44 to 100 ABGB (General Civil Code)
28 Art.46 Matrimonial Law
29 Art.55a Matrimonial Law
30 Arts. 1233 and 1237 ABGB (General Civil Code)
31 Art.97 ABGB (General Civil Code)
32 Arts.1217ff ABGB (General Civil Code) and Art. 1 Law on Notaries
Public
33 Arts.81ff Matrimonial Law
34 Art. 97 Matrimonial Law and Art.1 Law on Notaries Public
35 Art. 91 para.1 ABGB (General Civil Code)