Maintenance law regulates the question of which persons are obliged to pay maintenance to one another.
The mutual obligation of spouses to pay maintenance is thus a central consequence of marriage. Possible post-marital maintenance claims depend in principle on the fault upon which the marriage was divorced and essentially (with a few minor exceptions) only the party that is not at fault or has less fault will have a claim to maintenance after the divorce has taken place. In comparison to the legal situation in other countries, especially other European countries, the character of fault in Austrian divorce law and, as a consequence, in maintenance law is now almost unique and has been subject to ideas of reformation for a long time. Whether the Austrian spousal maintenance law is still up-to-date or not is ultimately a question of legal policy. The fact is, however, that maintenance proceedings bring with them significant uncertainties due to the character of the culpability described – and can therefore represent a risky process for both parties, but above all for a party that is less economically potent. In connection with the assertion of maintenance claims, difficulties can also regularly arise in determining the so-called maintenance assessment bases, i.e. above all the income of self-employed maintenance debtors. Depending on the situation, consideration should be given to possible agreements in this context, always bearing in mind that in a contentious legal dispute the results are not necessarily foreseeable. It will therefore be good to think about the best and the worst case scenario in such a case. All of this requires experience, the will to think about a case in detail and, last but not least, a sense of proportion, since the loss of a court case can also lead to an obligation to pay the other, winning party compensation for the court costs incurred.
The maintenance right of registered partners essentially corresponds to that of spouses.
Furthermore, there are no reciprocal claims to the payment of maintenance between partners.
In the area of child maintenance law, the law is also rather vague and unspecific in its specifications. According to the wording of the law, parents “have to make a proportionate contribution to covering the needs of the child that are appropriate to their living conditions, taking into account their abilities, skills, inclinations and development opportunities” – which would already be a complete quote of the provision that is central to Austrian child maintenance law. The relevant legal situation thus results far less from the law than from the meanwhile extremely extensive case law of the courts. Above all, however, knowledge of the courts of second instance is also required here, especially since it is not always possible exhausting the chain of appeal all the way to the Supreme Court. Of course, the courts also try to make appropriate decisions for all cases in order to be able to reflect the multitude of realities of families with different care systems and concepts in child support law, i.e. how to proceed if children are cared for by both parents more extensively than in the past or live in a so-called double residence. The jurisprudence of the courts is correspondingly extensive, often difficult to overview and detailed in individual cases. In this context, too, there have been efforts for reforms for quite some time, but these have not yet produced any results that would have been reflected in the law. In any case, we also have many years of experience in this traditional area of legal representation in family law, especially with regard to the enforcement of claims in court. Contrary to spousal maintenance law, the costs incurred in proceedings relating to maintenance claims involving minor children are never reimbursed, i.e. not even in the event that the court’s own application is fully complied with. When conducting court proceedings, care must therefore be taken from the outset to ensure that the realistically achievable result also justifies the procedural effort incurred.