Verlag der Österreichischen Akademie der Wissenschaften

Abstract:
From the Ehegesetz of 1938 to its reform in 1999, adultery, refusal of reproduction and other matrimonial offences counted as grounds for divorce. With the absolute grounds for divorce, i.e. adultery and the refusal of reproduction, there was no further test on their destructive effects, whereas with the remaining ones, which were known as relative grounds, there had to be a test on whether the offence in question had indeed harmed the marital union. Following the reform of 1999 (Eherechtsänderungsgesetz) only severe matrimonial offences remain as relative grounds for divorce. A matrimonial offence may be any given behaviour of a spouse which undermines the founda- tion of their marriage. Thus, not just unethical behaviour such as insults or physical assaults but also too close (though not sexual) contact with a person of the opposite sex may under certain circumstances constitute a ground for divorce. In the past few years the claim of ‘unloving behaviour’, which may refer to a great variety of practices, has increas- ingly been brought forward in courts. For the judges it is getting more and more difficult to establish which of those should be regarded as a severe offence.