Marriage and Divorce, 1867-1906
Published at
DVHH.org 10 Jun 2014 by Jody McKim Pharr
Austria
The regulations governing marriage and divorce in Austria and the other parts of the empire represented in the Austrian Reichsrath are in general those contained in the Austrian Civil Code promulgated by the imperial patent of June 1, 1811, supplemented and modified by a number of later laws, court decrees, and ministerial edicts.
Definition: Marriage in its civil aspect is defined as follows in the Austrian Code: "The foundation of family relations is the marriage contract. In the marriage contract two persons of different sex legally declare their intention to live in inseparable union, to beget children and to rear them up, and to render each other mutual assistance." (Section 44.) Impediments:
"Anyone may conclude a marriage contract, in so far as no legal impediment stands in his way." (Section 47.)
I. Lack of personal capacity to consent to the marriage.—In accordance with the conception of marriage as a contract, the same qualifications are in the main presupposed for marriage as for the undertaking of other legal obligations. Accordingly the following restrictions are placed upon the capacity of a person to conclude a marriage:
1. Mental incapacity. Persons who are insane, demented, or imbecile, or who for any other cause, such as intoxication, are deprived of the exercise of their mental faculties, are absolutely incapable of contracting a valid marriage.
2. Age. Minors who have not completed their fourteenth year are likewise incapable of contracting a valid marriage.
3. Consent of parents or guardians. Individuals of legitimate birth who have completed their fourteenth but not their twenty-fourth year, and even those who may have attained the latter age but for any reason are unable by themselves alone to enter into any valid obligation (e. g., if the paternal authority has been continued over them for legal cause, or if they have been legally declared spendthrifts), are incapable of contracting a valid marriage without the consent of their father or, if he is dead or incapable of acting, both of their regular representative and of the cojurt. In the case of minors of illegitimate birth, the consent both of their guardian and of the court is requisite for marriage. Foreigners under the age of 24 who are unable to bring the necessary consent are to have a representative appointed by the court within whose jurisdiction they are domiciled, for the purpose of giving or refusing consent to the marriage. If consent to marriage is refused a minor or ward, and either of the parties desiring marriage feels aggrieved thereby, he has the right of appeal to the local judge. The law gives as examples of legitimate grounds for the refusal of consent lack of necessary income, proven or generally known bad habits, and contagious disease or infirmities hindering the object of marriage existing in the one with whom the marriage is intended. 4. Military service. In general, military persons can not contract a valid marriage without the written permission of their superiors. In addition, a law dated April 11, 1889, provides that a man shall not be permitted to marry before reaching the age of military service (21 years), or before leaving the third age class (i. e., 23 years). Those who for any reason have been freed from the obligation to service are, however, exempt from this prohibition, and in very exceptional cases permission to marry may be given by the minister of national defense, or by the authority properly delegated for that purpose. Violation of the provisions of this law renders the offender liable to severe penalties, but does not affect the validity of the marriage.
II. Lack of free consent.—As a valid contract presupposes free consent, a marriage may be invalid on the following grounds:
1. Fear. A marriage is invalid if the consent of either party was given because of a well-grounded fear. This is a ease for judicial determination, and whether the fear was well grounded must be judged from the greatness and probability of the danger and the physical and mental characteristics of the threatened person.
2. Abduction. A marriage is absolutely invalid if either party had been abducted and at the time of the ceremony had not yet been restored to freedom.
3. Error. Error affects the legality of the marriage only when it occurs in respect to the person of the future spouse.
4. Premarital pregnancy. On the theory of error, if after marriage a husband finds his wife already pregnant by another, he may ask that the marriage be declared invalid.
III. Lack of physical capacity.—In addition to the impediments to marriage that arise from its quasi contractual nature, certain special impediments are established, based upon deficient capacity, physical or moral, to fulfill its object. Thus, because of the deficient physical capacity it implies, perpetual and incurable impotence existing at the time of marriage is made an impediment to marriage in the one so afflicted. But if the impotence is temporary, or has supervened after marriage, the marriage bond can not be dissolved on that account. Impotence, moreover, does not absolutely invalidate the marriage, but simply makes it voidable.
IV. Moral impediments.—Moral impediments to marriage are as follows:
1. Criminal sentence. No person who has been condemned under the military penal laws to severe punishment for crime can marry so long as the sentence is in effect.
2. Previous marriage. The burden of proof is imposed on one who desires to marry a second time to show that the previous marriage has been completely dissolved.
3. Holy orders and vows of celibacy. No person who has taken holy orders or is a member of a religious order which exacts a solemn vow to celibacy can contract a valid marriage.
4. Difference in religion. Marriages can not be entered into between Christians and non-Christians.
5. Consanguinity and affinity. This covers marriage between ascendants and descendants, between full or half brothers and sisters, between first cousins, and between uncles and nieces, or aunts and nephews. The relationship may arise from legitimate or illegitimate birth. For the Jews, however, the impediment of consanguinity extends no further in the collateral line than to marriage between brother and sister, or between a woman and her nephew or grandnephew, while after previous marriage has been dissolved the man is not permitted to marry a relative of his wife in the ascending or descending line, nor his wife's sister, nor the wife a relative of her husband in the ascending or descending line, nor her husband's brother, nor a son or grandson of her husband's brother or sister.
6. Adultery. A marriage between two persons who have committed adultery with each other is invalid, but the adultery must be proven before the marriage takes place.
7. Attempted homicide. If two persons, even without preceding adultery, have promised to marry, and if, for the purpose of attaining this end, even one of them alone has attempted the life, of the consort who stood in the way of the marriage, no valid marriage can be contracted, even if the homicide was not actually accomplished.
V. Restrictions arising from the dissolution of a former marriage:
1. Complicity in causing divorce. A divorced person can not . contract a valid marriage with a person who may have occasioned the divorce either by adultery, instigation, or other culpable means.
2. Catholicism. A Catholic can not legally marry a divorced person so long as the latter's former consort is living.
3. Period of delay. When a marriage is dissolved in any manner whatever, the woman, if pregnant, can not marry again before her delivery. If there is any doubt as to her pregnancy, she can not marry again before the lapse of six months; she may, however, be permitted to marry after the lapse of three months upon dispensation from the local authorities, if circumstances or expert testimony indicate that pregnancy is not probable. Violation of this prohibition does not affect the validity of the marriage, but entails upon the woman the loss of all advantages accruing to her under the pacts of the previous marriage, and upon the man the loss of the right to have the marriage annulled on the ground of pregnancy supervening before marriage.
Preliminaries to marriage: Two requisite formalities are established for the conclusion of a valid marriage—the publication of the banns and the solemn declaration of consent. Ordinary form of publication.—The publication consists in the announcement of the impending marriage, together with the Christian and family names, birthplace, position (including rank, occupation, etc.), and residence of each party, with the admonition that anyone acquainted with an impediment to the marriage shall give notice thereof. Such notice shall be given either directly to the clergyman who is to perform the ceremony or through the clergyman who has made the publication. The publication must take place on three Sundays or holydays (in the case of the Jews on three consecutive Sabbaths or feast days) at the customary religious assembly of the parish of each of the contracting parties. If either party has been resident in the parish where the marriage is to be concluded for less than six weeks, then the publication must also be made in the last parish in which his residence endured for the specified time, or else the marriage must be postponed until the requisite time has elapsed in the parish of present residence. If the marriage has not been concluded within six months after the publication of the banns, the three publications must be repeated before the marriage can be celebrated.
Civil publication.—If a clergyman refuses to proceed to the publication of the banns on grounds not recognized by law, the parties may have recourse to the civil authorities to whose jurisdiction they belong. First, however, the refusal must be proved to the authorities by the written certificate of the clergyman or the testimony of two competent witnesses, otherwise the authorities must write to the clergyman requesting him either to proceed to the desired formalities or else to send a justification for his refusal. If no legal justification has been received within eight days, the civil authorities are to proceed on their own account. In such cases publication is to be made by the posting of a notice on the official bulletin board for a period of three weeks.
Since 1870 civil publication has been obligatory when neither of the parties belongs to a legally recognized confession. The publication is made in the way indicated above.
Celebration:
Ordinary form.—The solemn declaration of consent must ordinarily be given before the regular pastor of one of the parties, or before his representative, in the presence of two witnesses. It may be given by proxy, provided that the consent of the provincial authorities has first been obtained, but the proxy must specify the person with whom the marriage is to be contracted. The clergyman is forbidden under heavy penalties to proceed with the marriage if the parties are unable to produce satisfactory proofs that they satisfy the legal requirements as to age, legal consent, and publication, or if any other impediment has been raised. In such cases the right of appeal to the civil authorities is reserved to the parties. If the marriage is to take place in a parish in which neither party is resident, an authorization must be obtained from the parish clergyman of one of the parties, indicating the clergyman before whom the marriage is to be performed.
Civil marriage.—As in the case of publication, if a clergyman refuses to proceed to the conclusion of the marriage on grounds not recognized by law. the parties may have recourse to the civil authorities. Before the marriage can take place, however, the same preliminary formalities that are exacted in the case of a civil publication must be complied with. The solemn declaration of consent must be given before the chief administrative official of the district or municipality, in the presence of two witnesses and a sworn secretary. The authorities of a district in which neither of the contracting parties resides may be delegated to perform the marriage by the authorities who have original jurisdiction.
Since 1870 civil marriage has been compulsory if neither party belongs to a legally recognized confession. The procedure is essentially the same as in the case of the facultative civil marriage. Record of marriage:
Record of ordinary marriage.—Immediately after a marriage has taken place it must be recorded in the marriage register of the parish, which must show the full name, age, residence, position, occupation. and previous marital condition of each of the parties; the names and position of the parents and witnesses: the date of the ceremony: and the name of the officiating clergyman. The documents by which any intervening objections were removed must also be indicated. If the marriage takes place in a parish in which neither party is resident, the clergyman performing the marriage must enter it in his parish register, stating the name of the clergyman from whom the authorization was received, and must, within eight days, notify the latter of the conclusion of the marriage.
Record of civil marriage.—In the case of marriages performed by the civil authorities, a minute is to be drawn up at the time of the marriage and signed by the parties to the marriage, the witnesses, and the officials taking part. Proper records of publications and marriages must be kept, and official notice sent immediately to the regular clergyman of each party. Dispensation:
For grave reasons, dispensation from marriage impediments may be sought from the provincial authorities. Prior to marriage this must be requested by the parties in person, but if after marriage has been concluded an impediment previously unknown should disclose itself, the request may be made by the parties through their clergyman, with suppression of names. For weighty reasons, also, the district or municipal authorities may grant a dispensation from the second and third publications, and in extremely grave cases, as when the threatened death of one of the parties to the marriage admits of no delay, publication of the banns may be dispensed with entirely, but the parties must declare on oath that they know of no impediments. Complete dispensation from publication is also granted upon the required oath, when it has been generally supposed that the parties were already married, in which case the request may be preferred by the pastor, with suppression of names. In case of dispensation from an impediment that has appeared after marriage, the solemn declaration of consent, but not the publication, must be repeated, after which the marriage will be considered as valid from the beginning.
Marriage in other countries:
In general, marriages of Austrian citizens in other countries are considered as valid in Austria, if the parties to the marriage satisfied the requirements of the laws of their respective countries as to personal capacity, and if the requirements as to form prescribed by the laws of the country where the marriage took place were fully observed. Since, however, the Austrian law accepts the Catholic theory of the indissolubility of marriage except by death so far as members of that confession are concerned, no marriage of an Austrian citizen in a foreign country is considered as valid by the Austrian courts which runs counter to this principle in any way. Accordingly marriage between a Catholic citizen of Austria and a person who has been divorced in another state is invalid in the eyes of the Austrian authorities, if performed during the lifetime of the divorced party's former spouse. Moreover, marriages in which one of the parties was a divorced person who at the time of entering into the previous marriage was a Catholic, or who later became one, are, if performed during the lifetime of this party's former spouse, recognized in Austria only if at the time the foreign decree of divorce went into effect both of the parties to the prior marriage, and at the time of the new marriage both of the contracting parties, were neither Catholics nor Austrian citizens. Marriages not conforming to these requirements can be annulled if the courts of Austria have acquired jurisdiction over the parties.
Transylvanian marriages.—Frequent attempts have been made to evade the effect of the incorporation in the Austrian Code of the principle of the indissolubility of marriage except by death so far as Catholics are concerned, the general method being to acquire citizenship in some country where divorce from the marriage bond is permissible for Catholics, obtain an absolute divorce from the courts of that country, and then enter into a new marriage there. The most conspicuous examples of such attempted evasion were the so-called "Transylvanian marriages," which were rendered possible by the confused state of Hungarian marriage and divorce law prior to 1895. The procedure of "Transylvanian marriages" is described as follows: 1
"The separated Catholic professed conversion to the Evangelical or Unitarian confession. The parties then acquired Hungarian citizenship, after which the separated party obtained from the Evangelical or Unitarian matrimonial court in Transylvania a decree by which the earlier separation was declared a divorce and the parties left free to enter into a new marriage. The new marriage was then concluded." Such marriages were considered absolutely valid within Hungarian territory, but they could have no legal effect so far as Austria was concerned, and the Austrian courts consistently refused to recognize them. The passage of the uniform marriage law by Hungary in 1894, however, put an end to the "Transylvanian marriage." Marriage of foreigners in Austria:
Foreigners desiring to marry within the Austrian dominions are as a rule required to produce a certificate that they are competent to marry according to the law of their own state. As to form. Austrian requirements as to publication and declaration of consent must be observed.
1 Stubenrauch: Corn-men tar zum dsterreichischen allgemeinen bilrgcrlichen Oesetzbuche, I, 197, Anm. 1.
Encouragement of marriage: Illegitimate children are fully legitimatized by the subsequent marriage of their parents. This legitimacy dates only from the day of the marriage, however.
ANNULMENT
Grounds:
In actions of annulment a distinction is made between cases in which the impediment affecting the validity of the marriage is based on considerations of public policy and those in which it arises from infractions of individual rights. In the former case the action must be initiated by the civil authorities, who are required to institute an investigation whenever the existence of causes tending to affect the validity of the marriage becomes known to them. The impediments that require official intervention are as follows:
1. Abduction
2. Existing previous marriage
3. Holy orders or membership in a religious order exacting a solemn vow to celibacy
4. Difference in religion
5. Consanguinity and affinity
6. Adultery
7. Attempted homicide
8. Failure to observe the required form for the solemn declaration of consent
9. Complicity in causing previous divorce
10. Catholicism, in cases where a previous marriage has been dissolved by the courts. In all other cases, as when the dissolution is sought on the ground of impotence, or where the marriage was entered into under the influence of fear or error, the petition of the injured party must be awaited. In these cases, where the right of attacking the marriage is personal, the innocent party alone possesses the right, which is extinguished if he continues the marriage after receiving knowledge of the impediment. The father or guardian can attack the marriage of a minor or ward only so long as the latter continues under his authority.
Procedure: The rule as to jurisdiction in actions of annulment is the same as in cases of absolute divorce. If the impediment can be removed, the court must attempt it, by initiating the necessary preliminaries and bringing about the agreement of the parties, and the case is to proceed to trial only when such removal of the impediment proves impracticable. In other respects the procedure is the same as in actions for absolute divorce, including the appointment of a defender of the marriage, who is required to appeal to the higher courts in all cases where a decree of annulment is rendered in the court of first instance. In cases where the validity of a marriage depends upon the validity of a prior marriage, a defender is appointed for each marriage. The presumption is always for the validity of the marriage, and where, the action is instituted by one of the parties the court is required to take the marriage under its special protection. The alleged impediment must be conclusively proven; the concurring acknowledgment of the parties does not have the force of proof, nor can the hindrance be established by the examination of the parties, or upon their unsupported oath. In cases of impotence, expert medical testimony is required, and if there is the slightest uncertainty as to the permanence of the impotence, cohabitation must be continued for one year, and the marriage can be annulled only after the impotence has continued throughout this time.
Effects: The decree of annulment must indicate the guilty party, and must be indorsed on the marriage record. The innocent party can claim compensation for all actual loss occasioned by the invalid marriage and arising through the fault of the other party. Children of the marriage are to be regarded as legitimate if at least one of the parties entered into the marriage in good faith, but they are excluded from all claim to property which is reserved by family dispositions to legitimate offspring.
LEGAL DECLARATION OF DEATH
Between Catholics the bond of marriage can be dissolved only by the death of one party, even if at the time of marriage but one of the parties was Catholic. This holds even if one of the parties after marriage entered a Protestant confession. Catholic marriages may, however, be provisionally dissolved by the legal declaration of death, which is provided for in ca.ues of continued absence, when eighty years have elapsed since the birth of the absent person and his place of residence has been unknown for ten years; if he has not been heard from for thirty years; or if he has been missing for three years and was last heard from under circumstances leaving little doubt as to his death. At the commencement of an action for legal declaration of death an official edict must be promulgated asking for information about the missing person, and final judgment can be rendered only after another year has elapsed. In order for such a declaration to affect a marriage, special request must be made to that effect, in which event the court has to appoint a defender of the marriage, with duties the same as those of the corresponding official in a case of divorce. A declaration of death under such circumstances provisionally dissolves the marriage, and the consort of the absent person acquires the right to marry again, but should the missing person afterwards reappear he regains all his marital rights, and any new marriage contracted by the other party becomes of no effect.
ABSOLUTE DIVORCE
Grounds:
For non-Catholic Christians absolute divorce is permitted on the following grounds:
1. Conviction of adultery or of a crime the penalty for which involves a sentence of at least five years in prison.
2. If one party has maliciously abandoned the other, and, in case his place of residence is unknown, has failed to return within a year after public judicial summons.
3. Designs endangering the life or health of the complainant (dem Leben oderderGesundheitgefiihrliche Nachstellungen).
4. Repeated severe cruelty (wiederholte schwere Misshandltingen).
5. Invincible aversion, not necessarily mutual, on account of which both parties desire the dissolution of the marriage. The aversion must, however, be proved, and the divorce is not to be granted until a temporary separation from bed and board between the parties has been tried at least once, and, if the circumstances seem to require, repeatedly, without a reconciliation resulting. The divorce can be granted only upon a renewal of the suit. In exceptional eases, however, this temporary separation may apparently be omitted.
Limitations to right of action: The right to bring an action for divorce belongs to the innocent party alone, and is extinguished by an express or tacit renunciation. The non-Catholic party retains the right to divorce even if the other party has since the marriage been converted to Catholicism, but divorce is not permitted if either party was a Catholic at the time of marriage.
Procedure:
Jurisdiction.—Divorce cases are to be brought ordinarily before that court of first instance under whose jurisdiction the parties had their last common residence. In exceptional cases they may be brought before the court having jurisdiction over the plaintiff, or the provincial court at Vienna.
Service.—The defendant is notified by personal service, unless the court is satisfied that his residence is unknown. In this event a curator is to be appointed to represent the defendant and service is to be made to him. An edict of the court is also to be posted on the official bulletin board and inserted at least once in the newspaper designated for official not ices, announcing the appointment of the curator, who is to act on behalf of the defendant, and at his costs, until he appears in person or indicates another representative. If considered expedient, the edict may be published in other newspapers and more than once. The trial can not be proceeded with until a year from the date of publication.
Court procedure.—Before hearing the case the court must, if there appears to be any chance of success, attempt to bring about the reconciliation of the parties, and the trial is not to be proceeded with until reconciliation is manifestly impracticable. Following an unsuccessful attempt at reconciliation, the complainant is summoned to appear before the court, in person and alone, and indicate the grounds on which he is seeking the divorce and the evidence he intends to present. If it appears that his petition is not well founded, an attempt is to be made to induce him to withdraw it voluntarily.
The complaint may be brought either orally or in writing. If either of the parties is a minor or ward, his parents, guardian, or curator, must be joined in the action. Representation of the parties by counsel is not compulsory. The court must, however, appoint some judicious and upright man as defender of the marriage, who shall be present at all the proceedings, and whose duty it shall be to obtain exact information concerning all the circumstances alleged as grounds for divorce, to investigate carefully how far the petition is grounded in law and supported by complete proof, or what objections may be raised against it, and to express his opinion on the question fully and conscientiously to the court.
Before the case is heard in court one of the judges must be delegated as a referee to conduct preliminary proceedings for the purpose of expediting and simplifying the proceedings at the trial. In the preliminary proceedings questions as to jurisdiction and right of action are to be decided, the allegations on which the case is to be tried definitely settled, the evidence that is to be offered by each side precisely indicated, and in general the issues, as far as possible, put into shape for decision. The referee has the authority to receive evidence which it would be impossible to receive during the trial, or the takingof which would tend to prolong the trial inordinately or to make it unduly onerous, as well as such evidence which it appears necessary to take in order to assure its presentation at the trial. In general, the referee is to ascertain fully the bearings of the case and is to prepare a minute stating the results of his investigations, referring to the means of proof, the objections that were made, and the declarations that were given concerning the means of proof and the objections. The minute is to be given to the court, after which the trial is to proceed. The preliminary proceedings have been required only since 1898, when the present code of civil procedure went into effect, all proceedings prior to that time having been before the full court.
Both in the preliminary proceedings and in the trial every effort is to be made to disclose every circumstance that is of importance in arriving at a decision. The grounds upon which the divorce is sought must be set out in their full light, and the most rigid proof is required; the same rules of evidence apply as in a case of annulment. In general, the trial must be so conducted as either to prove clearly, without taking into consideration any mutual agreement of the parties, the right of the complainant to seek a divorce, or else to establish without doubt the impossibility of this proof. If the presence of either party is desired in order that the real facts may be better ascertained, the court may compel attendance under penalty for failure to comply. During the pendency of the action the judge may grant a separate abode to a party whose welfare is endangered by a continuance of the marital community. In the decree of divorce the court must indicate the guilty party, or if both parties shared in the guilt, or both were blameless, that fact must be stated. The decree must not, however, state the cause. The defender of the marriage is required to appeal to the higher courts from every decree 46265—Vol 1—09 22 dissolving the marriage. If either party is a Catholic, the defender of the marriage is required to carry the case to the court of last resort; otherwise he is not required to appeal from a second decree concurring in granting the divorce. Results of decree:
Custody of children.—In cases of divorce where the parties are not agreed upon the disposition of the children, the custody of male children until the completion of their fourth year and of femala children until the completion of their seventh year falls to the mother, after which the father receives charge. The court may provide otherwise, however, if circumstances seem to make it advisable. The father is at all times bound for the support of the children, unless he is without means.
Property effects.—It is the duty of the court to attempt to secure a mutual agreement between the parties in reference to the property involved, otherwise (except in case of divorces on the ground of invincible aversion, when the marriage pacts lose all effect) the innocent party from the moment of the divorce is entitled to all the rights and privileges that would have accrued to him according to the marriage pacts if he had outlived the other party.
Other effects.—The woman retains the name of her husband. Both parties are free to remarry, subject to the restrictions as to the remarriage of divorced persons indicated in the section on "Impediments." Validity of divorces obtained in foreign countries:
In general, foreign, decrees of divorce in which either party was an Austrian citizen are not recognized in Austria. Record of divorce:
Absolute divorces must be noted on the marriage register in connection with the record of the original marriage. Divorce among the Jews:
For absolute divorce among the Jews special provisions exist, adopted from the Mosaic law. Marriage may be absolutely dissolved by means of a bill of divorce given by the man to the woman with the mutual agreement of both parties. This can not take effect at once, but there must first be three attempts at reconciliation, either by the rabbi or by the court, or by both. In case these attempts are unsuccessful, the court, upon the declaration of both parties that they respectively give and receive it with free consent, is to permit the man to deliver the writing of divorce to the woman, when it obtains the effect of a legal divorce.
The only other case in which the Austrian law permits divorce among the Jews is for proven adultery of the wife, when the man, after judicial determination, is permitted to give her a bill of divorce against her will. No defender of the marriage is appointed in Jewish divorce cases.
The prohibition against the marriage of Catholics with divorced persons does not apply to persons divorced under the Jewish law, on the theory, probably, that the original marriage was essentially a civil ceremony and as such not recognized by the ecclesiastical authorities.
SEPARATION
The Austrian Code permits separation from bed and board, either with or without mutual agreement, for all citizens, without distinction of creed. Separation by mutual agreement:
In a case of separation by mutual agreement the parties must appear before the district court in whose jurisdiction they reside. The court must at three several times, at intervals of at least eight days, malce a solemn attempt to effect a reconciliation between the parties, unless a certificate is presented showing that these attempts have already been made by their regular parish clergyman. If the attempts at reconciliation prove fruitless, and the parties are in agreement in respect to the separation itself and to the provisions relating to property and support, the court grants the separation.
Separation without mutual agreement:
Grounds- The following grounds for separation without mutual agreement are given in the code, although apparently the list is not intended to be exhaustive:
1. Legal conviction of adultery or crime.
2. Malicious abandonment.
3. Disorderly life, endangering a considerable portion of the property of the complainant or the morals of the family.
4. Designs endangering the life or health of the complainant.
5. Cruelty, or, according to the circumstances (Verhältnisse) of the persons involved, extremely grievous and repeated indignities (sehr empfindliche wiederholte Kriinkungen).
6. Permanent bodily infirmity united with danger of contagion.
Separation has also been granted on other grounds, such as impotence supervening after marriage, wanton abandonment of an occupation, or injurious gambling.
Procedure.—In contested actions of separation attempts at reconciliation must first be made similar to those made in the case of separation by mutual agreement, the trial being proceeded with only after these attempts have proved fruitless. As in cases of absolute divorce, jurisdiction lies with the court of first instance of the political division where the parties had their last common residence. It is the duty of the court to attempt to bring about an agreement between the parties, and either secure the withdrawal of the petition by this means, or else induce the party contesting a separation sought on valid grounds to consent thereto without a judicial decree, either for a definite or for an indefinite length of time.
With the above exceptions the procedure in cases of separation is practically the same as when absolute divorce is sought, including the preliminary proceedings before the referee and the declaration of guilt. The ordinary rules of evidence are followed in actions of separation. Accordingly the concurring acknowledgment of the parties binds the judge, and an examination of the parties is admissible.
Effects.—The rule regarding the disposition of the children is the same as in an absolute divorce.
In cases of separation, where guilt or innocence is equal on both sides, either party may ask for the abrogation of the marriage pacts, in which case the court is to attempt to secure an agreement. If only one party is innocent, that party is at liberty to ask either for the continuance or for the abrogation of the marriage pacts, or, according to circumstances, to demand suitable support. Separated parties are free to reunite, upon notice to the proper court, but if they should afterwards desire to separate once more, a new action must be instituted.
HISTORICAL SUMMARY
The fundamental basis of the existing law of Austria on marriage and divorce is to be found in the provisions of the marriage patent of the Emperor Joseph II, issued on January 16, 1783, later incorporated in the Josephine Code of October 1, 1786. This marriage patent forms a landmark in the history not only of Austrian marriage law but of marriage law in general, as it represents the first comprehensive and organized attempt on the part of an important state to establish definite regulations of its own concerning marriage, which should govern it in its civil connections. The marriage ceremony itself was still left in charge of the ecclesiastical authorities, and the regulations, to some extent, corresponded more or less closely to those of the canon law; the procedure to be followed in order to make the marriage valid in the eyes of the state was, however, distinctly defined, and there was for the first time legal recognition of non-Catholic marriages. This recognition was especially apparent in the provisions relating to the dissolution of the marriage bond, as separation from bed and board, which could be obtained only by mutual agreement of the parties, alone was permitted to Catholics, while absolute divorce was permitted to members of non-Catholic confessions.
The Civil Code of 1811 adopted in the main all the essential features of the Josephine Marriage Patent, although it paid somewhat closer attention to differences of religious belief, especially by incorporating special provisions for divorce among the Jews, adopted from the Mosaic law. An imperial patent of October 8, 1856, pursuant to an agreement in the Concordat of August 18, 1855, suspended the operations of the law so far as Catholics were concerned, and subjected them once more to the jurisdiction of the ecclesiastical courts; but this exception was repealed by the law of May 25, 1868. By this latter law, also, civil marriage was for the first time provided for, being made compulsory for all belonging to no legally recognized confession, and facultative (discretionary) for others under certain conditions. With these exceptions there has been no essential change or addition to the Austrian marriage law since 1811, all other changes being mainly in minor matters of detail or procedure.
