Konfessionell gebundene Ehehindernisse im österreichischen Allgemeinen Bürgerlichen Gesetzbuch. Strategien zur Umgehung des österreichischen Eherechts

Abstract

Among the institutes of Austrian civil law, no other institute has been exposed to attempts of amendment more often than marriage law: One of the main targets of these attempts, which were made in the course of the 19th century, was the abolishment of marriage impediments based on denomination; mainly, the discussion focused on whether the dissolution of a Catholic marriage during the lifetime of the spouses should be allowed or not. Until the end of the 19th century, Austria with its denominationally discriminating marriage law was surrounded only by states in which – regardless of denomination – the divorce of a marriage was generally only permitted in the case of a re‐marriage of both spouses. Even at the end of the 19th century, this was generally applied in countries such as Hungary and Germany. To expand the scope of the application of German or Hungarian marriage law to Austrian Catholics who intended to undertake a re‐marriage, one had to resort to changing domicile and citizenship. Apart from this marriage impediment, which (in accordance to § 111) was only applicable to Catholics, the Austrian Civil Code contained another marriage impediment based on denomination: disparity of cult, i.e. cases where one spouse was of Christian confession and the other of a non‐Christian one (§ 64); de facto this provision mostly applied to cases where one spouse was a Christian and the other Jewish. In the following, we will mainly consider the problems that arose for spouses who were not able to circumvent the stringent regulations of Austrian marriage law when they attempted to get married in a foreign state. Special attention is devoted to the judicial practice of the Austrian Supreme Court and its legal assessment of such marriages.