International family law
In the field of international family law, the main question is which courts are internationally competent in the case that foreign countries are involved and according to which legal situation the content of the cases is to be dealt with. It may be the case, for example, that an Austrian court is responsible for conducting divorce proceedings, but in these proceedings the applicability of the law of another state must be assumed, so that the requirements for a divorce can apply; for example according to German family law. Such cases have become more and more frequent in recent years, especially as there are more and more marriages in which one or both spouses are not Austrian nationals or cases where spouses live or lived abroad for a while. However, not every case with a foreign connection necessarily has to be under international family law. Our main taks is to recognize and classify the individual case by applying the given domestic Austrian as well as European law as well as international agreements in international family law, all in in the area of divorce, maintenance matters, custody and contact law proceedings. The research of bilateral state treaties, often concluded a long time ago, which may be decisive for the legal assessment of individual circumstances, often requires perseverance and detailed considerations. In all of the cases, however, the background to these considerations may bring about a legal situation which may be more favourable for one party when applying a certain place of jurisdiction, the so-called “forum shopping”.
Cases of so-called child abduction are seen in a particularly serious way in the context of international family law. Such cases which are far more common in practice are far less striking as might be commonly assumed. In this context behaviour is set primarily out of ignorance of one’s own legal situation, which, from a legal point of view ultimately accounts for child abduction and can have far-reaching consequences. This refers to those cases in which an often international couple lives abroad and one party returns to the country of origin with the common child after a separation. If that has not been discussed with the partner, which regularly means that the latter’s right of custody for the child is lost, then the result is child abduction. In that case it may ultimately lead to the enforced return of the child to the country of original residence. Particular caution should also be required here with illegitimate children, since a move can change custody relationships, and additional custody relationships can be established. What was previously sole custody can suddenly become joint custody by moving to another country. Some might be faced with probably surprising legal consequence that the consent of the other parent is required for a move out of the country; otherwise it might lead to a child abduction case. These legal consequences often appear harsh and unreasonable, but can often be foreseen in advance. Many such child abduction proceedings, which are occasionally treated in the media, could have been avoided if enough foresight and caution would have been applied.
Last but not least, the legal support of international surrogacy has become an essential aspect of work in international family law in recent years. Since surrogacy is not legally permissible in Austria, couples with an unfulfilled desire to have children are increasingly considering using surrogacy abroad. In a ruling issued a few years ago, the Constitutional Court held that surrogacy, even if it is not legally permitted in Austria in reproductive medicine (FMedG), would in itself be very compatible with the Austrian system of fundamental rights. Accordingly, children born by a foreign surrogate mother in another country would also be entitled to Austrian citizenship, for example, if they are legally descending from an Austrian according to the law of the place of birth. Accordingly, decisions by foreign registrars, with which the intended parents are registered as the legal parents of the child, are to be recognized in Austria.
In any case, our law firm has many years of experience in all matters of international family law. This also allows us to have contacts to be made with numerous law firms in other countries around the world, which could be called upon to enforce your claims if necessary.
Our work in international family law also includes, in particular, the preparation of marriage and partnership contracts in an international context as well as the drafting of legal opinions in the event that Austrian family law is applicable in proceedings that are pending before courts in other countries.