A divorce by mutual consent under § 55a of the Marriage Act (EheG) ends a marriage jointly, without any finding of fault. It has three requirements: your life together as a married couple ended at least six months ago, you both agree that the marriage has irretrievably broken down, and you have a written divorce settlement agreement covering children, maintenance and property. The hearing at the district court usually takes only 10–15 minutes.
A calmer way to end a marriage
If you have both concluded that your marriage has no future, this need not turn into a long legal dispute. Divorce by mutual consent under § 55a EheG is the quicker, less expensive and less stressful route – provided you are both prepared to settle the consequences of the separation together. Neither of you has to prove that the other is at fault, and the hearing itself is often over in a few minutes.
This page explains in plain terms when a divorce by mutual consent is possible, what the mandatory divorce settlement agreement must contain, how the procedure works at a Vienna district court and what you can realistically expect in terms of costs and duration. The aim is to help you assess your situation before you take the next step.
Requirements for a divorce by mutual consent (§ 55a EheG)
For the court to grant a divorce by mutual consent, three requirements must all be met:
- Your life together as a married couple ended at least six months ago. Your married life together must have been over for half a year. Importantly, this does not necessarily mean two separate homes. What matters is that you no longer live together as a married couple – living separate lives within the same flat can be enough, for example if you have separate sleeping arrangements, separate households and separate finances.
- Irretrievable breakdown of the marriage. You both agree that the marriage has irretrievably broken down and that there is no prospect of restoring your married life together. Unlike in a contested, fault-based divorce, you do not have to prove the breakdown through fault or marital misconduct – it is enough that you both acknowledge it.
- Agreement on the divorce and its consequences. You both want the divorce, and you have agreed on the essential consequences. You record this agreement in writing in the divorce settlement agreement.
If even one of these requirements is missing, the route to a divorce by mutual consent is closed. The most common stumbling block is not the six-month period but a lack of agreement on property, maintenance or children. This is exactly where a lawyer can help: often – even after an initial dispute – you can still reach a workable agreement that spares you lengthy contested proceedings.
The divorce settlement agreement – the heart of the matter
A written divorce settlement agreement is a mandatory requirement. Without it, the court cannot grant a divorce by mutual consent. In it, the spouses agree on the essential consequences of the separation, and the agreement binds them for the future. Four points must be resolved:
1. Custody and contact for your children
If you have minor children, the agreement must state who has custody and how contact with the other parent will work. Joint custody by both parents is the statutory default under § 138 of the Austrian Civil Code (ABGB), and in principle it continues after the divorce. Every arrangement is measured against the best interests of the child.
2. Child maintenance
The agreement must set out how much maintenance the parent who is not the main carer pays for the children. Child maintenance is usually set as a share of the paying parent’s net income, using the percentage method. The exact amount depends on the child’s age, the parent’s income and any other maintenance obligations, for example towards other children or a spouse.
3. Spousal maintenance
The spouses must settle whether, and to what extent, one of them will pay maintenance to the other after the divorce (§§ 66 et seq. EheG). In a divorce by mutual consent, you are free to decide this as you wish – for example, you can agree a mutual waiver of maintenance or set a maintenance payment. A waiver has far-reaching consequences and is almost impossible to reverse, so you should only agree to one after careful thought and with proper advice.
4. Division of matrimonial property
The agreement must set out how the matrimonial property – in particular the matrimonial home and household effects – and the matrimonial savings are to be divided (§§ 81 et seq. EheG). Who takes over the flat, who takes on which loans, and how are accounts and savings to be shared out? If the divorce settlement agreement settles the division of matrimonial property conclusively, the matter is closed for good. The often overlooked one-year deadline in § 95 EheG – a claim must be made within one year of the date on which the divorce becomes final – then no longer matters.
Procedure at the district court (non-contentious proceedings)
A divorce by mutual consent is dealt with in non-contentious proceedings at the district court with jurisdiction. As a rule, local jurisdiction lies with the court for the spouses’ last common habitual residence. If this cannot be established, the Vienna Inner City District Court has fallback jurisdiction in Vienna under § 76 of the Act on Court Jurisdiction (JN). The procedure is deliberately kept simple:
- Joint petition. The two of you file a joint petition for divorce by mutual consent at the district court, together with the finalised divorce settlement agreement.
- Short hearing. You both attend in person. The judge checks whether the requirements are met and makes sure that the agreement reflects the free and genuine will of both of you. There is no ruling on fault.
- Court order. If everything is in place, the court grants the divorce by court order. If you both waive your right to appeal, the divorce becomes final immediately.
The hearing itself often takes only around 10 to 15 minutes. The real work comes beforehand – in drafting a sound, complete divorce settlement agreement.
Costs and duration – an honest estimate
The total cost can only be stated reliably for your individual case. One thing is clear, however: a divorce by mutual consent is usually much less expensive and quicker than contested proceedings. In addition to the lawyer’s fees, there are court fees, which are fixed by the Court Fees Act (GGG).
Duration: A divorce by mutual consent is often completed in around four to six months, and the hearing itself often takes only 10 to 15 minutes. How quickly it goes depends mainly on how soon you both agree on the divorce settlement agreement and how busy the court with jurisdiction is. If you arrive with a fully agreed settlement agreement, you shorten the proceedings considerably.
Do I need a lawyer for a divorce by mutual consent?
In a divorce by mutual consent, there is no statutory requirement to be represented by a lawyer. Strictly speaking, the two of you could file the petition yourselves. In very few cases is that a good idea – because the divorce settlement agreement is binding and will shape your financial and family future for years.
Legal support is particularly advisable if assets, a property, joint loans or a business are involved; if you have children together, which raises questions of custody, the right of contact (formerly known as visiting rights) and maintenance; or if a waiver of maintenance is being considered. Precisely because the agreement has far-reaching and lasting consequences, we check whether your interests are adequately protected – in the division of property as much as in maintenance.
How we help you
We support you calmly and systematically: from an initial assessment of whether a divorce by mutual consent is realistic in your situation, through careful drafting of the divorce settlement agreement, to representing you at the district court. We explain clearly what matters for custody, maintenance and the division of property, and which points you should on no account leave open. We make no promises about any particular outcome – but we do promise to represent your interests carefully and in a way you can follow.
Our Family law & divorce page gives an overview of all the routes to divorce.
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 stated (in particular court fees) are for guidance only. They are subject to annual adjustment and are not fixed prices. We give no guarantee of success. For a definitive assessment of your individual situation, please arrange a personal consultation.