A contested divorce under § 49 of the Marriage Act (EheG) begins with an action for divorce if no agreement is possible. The court examines whether serious marital misconduct – such as adultery, violence or causing severe emotional suffering – has led to an irretrievable breakdown of the marriage caused by fault. At the same time, it rules on fault. This ruling on fault mainly determines post-divorce spousal maintenance.
If you cannot reach agreement with your spouse, the remaining route is a contested divorce. It takes longer and is more stressful than an amicable solution – but sometimes it is the only route, when negotiations fail or there has been serious marital misconduct. This page explains when a divorce becomes contested, what the ruling on fault means and why money depends on it. You will find the full picture on our overview page on family law & divorce in Vienna.
When does a divorce become contested? (§ 49 EheG)
A contested divorce begins with an action for divorce. In most cases, it is based on serious marital misconduct by the other spouse. The law does not set out an exhaustive list. Typical examples in practice are:
- adultery – that is, sexual intercourse outside the marriage;
- physical violence against the other spouse or the children;
- causing severe emotional suffering, for example through constant humiliation, coldness or neglect.
What matters is that the misconduct is so serious that it has led to an irretrievable breakdown of the marriage caused by fault. Only if the court reaches this conclusion can it grant the divorce under § 49 EheG. Not every argument or disappointment is enough – the court looks at the marriage as a whole.
The ruling on fault – and why it matters
Unlike in a divorce by mutual consent, in contested proceedings the court also rules on fault. It decides whether one spouse is solely or predominantly at fault, or whether both share the fault. This ruling is not merely symbolic.
Its most important practical consequence concerns post-divorce spousal maintenance. The spouse who is solely or predominantly at fault for the breakdown is usually in a much weaker position when it comes to whether maintenance is payable, and how much. Conversely, the spouse who is ‘not at fault’ may have a maintenance claim against the spouse at fault. We explain in detail how maintenance is calculated on our page on maintenance. Because of these financial consequences, the ruling on fault is often the real heart of the dispute.
How the court proceedings work
The proceedings begin with the action for divorce, filed with the district court that has jurisdiction. In it, the claimant describes the instances of marital misconduct and asks the court to grant the divorce on the grounds of the other spouse’s fault. The defendant can defend themselves and, in turn, point to misconduct by the claimant – an objection that the claimant was also at fault.
At the centre of the proceedings is the taking of evidence: the court hears witnesses, the parties submit documents and messages, and sometimes the court calls in experts. Over several hearings, the court works out who committed which misconduct and how much weight each instance carries. The proceedings end with the judgment, which contains the ruling on fault. This judgment can be appealed, which can make the proceedings take even longer.
Important: even proceedings that began as contested can end in an amicable solution at any time if the parties reach agreement after all. We talk openly with you about whether this route is realistic despite the initial dispute, and whether it would be better for you.
Costs and duration – an honest estimate
A contested divorce is generally longer, more expensive and more emotionally stressful than a divorce by mutual consent. A hearing in a divorce by mutual consent often lasts only 10 to 15 minutes. Contentious proceedings, by contrast, can drag on for many months, sometimes for years – depending on the evidence, the number of witnesses and any appeals. A reliable estimate of duration and costs is only possible case by case.
When to involve a lawyer
In a contested divorce, legal representation is practically essential. What matters is drafting the statement of claim correctly, presenting evidence of the marital misconduct, dealing with the objection that the other spouse was also at fault, and handling the financial consequences of the ruling on fault. Mistakes in the conduct of the case are hard to correct later. They can decisively affect the outcome – and with it your maintenance claim.
Legal help is also important where the dispute over fault is bound up with other issues: the division of matrimonial property, custody and contact for children you have together, and ongoing and post-divorce maintenance. These questions often cannot be looked at in isolation.
How we help you
We take you through the contentious proceedings calmly and systematically – from a first realistic assessment of your prospects of success, through the statement of claim and the presentation of evidence, to representing you at the hearing. We tell you openly where your position is strong and where it is not, and whether an amicable solution would still be the better route. We make no promises about any particular outcome – but we do promise to represent your interests carefully and transparently.
Contact: Teamanwälte, Mag. Johannes Bügler · Baumgartenstraße 82, 1140 Vienna · Phone +43 1 419 13 18 · office@teamanwaelte.at. Arrange an initial consultation, where we will take the time to discuss your situation.
Note: This page provides general information only and does not constitute legal advice on any individual case. The amounts and durations of proceedings stated are for guidance only. They change every year and are not fixed prices. We give no guarantee of success. For a binding assessment of your individual situation, please arrange a personal consultation.