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Abstract
Austrian family law stands out in Europe because, in Austria, fault-based divorce is still legally valid. In these divorces, the suing partner attempts to prove in court that the other partner is at fault for the breakdown of the marriage. Thus, proving in court that a relationship is deficient in order to obtain a divorce is a common family transition practice in Austria. In this contribution, I seek to identify the practices that are associated with fault divorce proceedings and look at how these practices are related to normative and legal ideas of marriage. Based on a qualitative multiple case study, I analysed 17 fault divorce lawsuits filed by heterosexual couples in the 2014–2016 period. To do so, I used situational analysis, trans-sequential analysis, and an analytical framework that was developed within the research project. The spouses’ involvement in the proceedings relied on two main approaches: First, the divorce was justified by an event that was disruptive enough to ‘keep things short’. These narratives were related to the divorce grounds explicitly mentioned in family law. Second, the divorce was justified through narratives of a ‘normal’ marriage that became a ‘bad’ marriage over time. These narratives relied upon characterisations of the other spouse as deficient. These deficiencies were related to normative expectations associated with particular life stages and gendered life course trajectories and mirrored the nuclear family ideal.
1. Introduction
In recent decades, the relationship patterns and perceptions of divorce in Western societies have changed (Raley and Sweeney 2020; Perelli-Harris and Lyons-Amos 2015; Amato 2010), and these changes are also reflected in family law (Kreyenfeld and Trappe 2020). Whereas just a few decades ago, a divorce was seen as a disruptive event that was the fault of individual partners, and thus the last phase in the evolution of a family, there has been a shift in the social and scientific perspectives on divorce, starting in the early 2000s (Smart 2004; Kitson 2006). Since this shift, divorce has generally been seen as one transition in the course of multiple transitions in a family’s evolution that reorganises family relations and can lead to the divorced spouses forming new partnerships and remarrying (Amato 2010). Even though there appeared to be a slight backlash against liberal attitudes towards divorce in most European countries after the early 2000s, these overall changes in recent decades have been reflected in family law. Thus, in most European countries today, fault-based divorce has been abolished (Kreyenfeld and Trappe 2020).
Together with a few other countries, Austria stands out in Europe with regard to family law because, in Austria, fault divorce is still legally valid (for an overview, see Antokolskaia 2016; Zartler 2013). This means that a partner whose spouse does not agree with the decision to divorce either has to wait until the couple has been separated for six years to obtain a legal divorce or has to file for a fault divorce. In the latter case, the initiating partner has to prove to the court that the other spouse has failed to fulfil his or her marital obligations. The law states that a fault divorce can be granted ‘if the other [partner] has culpably disrupted the marriage through serious misconduct or through dishonourable or immoral behaviour to such an extent that the restoration of a normal marital union cannot be expected’ (Ehegesetz 1999).