: Japanese Fairy Tales
The Austria-Hungary Empire comprises five countries, each bearing the name
of kingdom--viz., Hungary, Bohemia, Galicia, Illyria and Dalmatia; one
archduchy, Austria; one principality, Transylvania; one duchy, Styria; one
margraviate, Moravia, and one county, Tyrol. In this chapter we shall deal
with the marriage and divorce laws of Austria, leaving those of Hungary
and Transylvania for the following chapter.
The regulations governing the marriage relation in Austria and the other
parts of the Empire represented in the Austrian Reichsrath are in general
contained in the Austrian Civil Code, which became law on June 1, 1811,
supplemented by later statutes, court decrees and ministerial edicts.
Perhaps the most curious feature of Austrian law is that an absolute
divorce can, for certain causes, be granted when both the parties are
non-Catholic, but for Roman Catholics the bond of marriage is dissoluble
only by the death of one party.
DEFINITION OF MARRIAGE.--The Austrian Code defines marriage as follows:
"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."
MARRIAGE QUALIFICATIONS.--1. There must be mental capacity. Insane,
demented, imbecile parties or persons deprived of the free use of their
minds by intoxication or any other cause cannot contract a binding
2. Minors must have completed their fourteenth year of age.
3. Minors of legitimate birth under 24 years of age require the consent of
their parents or proper guardians. Illegitimate minors under 24 years of
age require the consent not only of their legal guardians but also that of
4. There must be free consent of both parties.
5. Physical capacity. Permanent and incurable impotence is an impediment
6. Moral impediments. No person who has taken holy orders which involve a
solemn vow to celibacy can contract a valid marriage. Marriages between
Christians and Jews are forbidden.
CONSANGUINITY AND AFFINITY.--Marriage is forbidden 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 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.
A Roman Catholic is expressly forbidden to marry a divorced party until
after the death of the latter's former consort.
PRELIMINARIES.--A valid marriage can take place only after formal
publication of the banns and the solemn declaration of consent.
Banns are published by announcing the coming marriage together with the
full names of both parties, their birthplace, status and residence, on
three consecutive Sundays or holidays. In the case of Jews the banns must
be published on three consecutive Saturdays or feast days.
CELEBRATION.--The solemn declaration of consent must generally be given
before the spiritual pastor of one of the parties or before his
representative. Two witnesses are necessary.
A civil marriage in which the solemn declaration of consent is given
before the chief administrative official of the district, in the presence
of two witnesses and a sworn secretary, is obligatory if neither party
belongs to a legally recognized religious sect.
FOREIGN MARRIAGES.--The marriage of an Austrian subject in a foreign
country is treated as valid in Austria if the marriage was concluded
according to the laws of such foreign country, and provided that such
marriage was not in contravention of the Austrian law which accepts the
Roman Catholic dogma of the indissolubility of marriage except by death of
one of the parties.
ILLEGITIMATE CHILDREN.--Such children are fully legitimatized by the
subsequent marriage of their parents.
ROMAN CATHOLICS.--As we have noted before between Roman Catholics the bond
of marriage cannot be dissolved by divorce. This rule applies even if one
of the parties is converted after marriage to a non-Catholic sect.
The Austrian law provides a way by which some Roman Catholic marriages may
be provisionally dissolved after what is termed a "legal declaration of
death." If eighty years have elapsed since the birth of an absent spouse,
and his or her place of residence has been unknown for ten years; if an
absent spouse has not been heard from in thirty years; or if a spouse has
been missing for three years, and was last heard of under circumstances
leaving little doubt as to his or her death, then an action can be
instituted to have the absentee legally declared to be dead. Such a
declaration of death will legally dissolve the marriage, leaving the
spouse of the missing party free to marry again. However, should the
absentee spouse ever reappear, the declaration of death and the new
marriage lose all legal effect.
DIVORCE.--Non-Catholic Christians may obtain absolute divorce for the
1. Conviction of adultery, or of a crime the penalty for which could be a
prison sentence of five years.
2. Malicious abandonment.
3. Severe cruelty.
4. Conduct endangering the life or health.
5. Invincible aversion on account of which both parties desire a divorce.
This need not be a mutual aversion, but it must be shown to be actual and
lasting. For this cause an absolute divorce is granted only after a
temporary separation from bed and board has been decreed, and the parties
appear to be irreconciliable.
EFFECTS OF DIVORCE.--The woman retains the name of her husband, and both
parties may remarry, with the exception that a guilty party may not marry
his or her accomplice.
The guilty party loses all rights and privileges in the property of the
As to the custody of children the court has authority to make such order
as the facts and justice may require.
JEWISH DIVORCES.--Jews in Austria may obtain absolute divorce under
special regulations adapted from the Mosaic law and rabbinical
Marriage may be absolutely dissolved by means of a bill of divorcement
given by the man to the woman, with the mutual agreement of both parties.
This cannot take effect at once, but there must be three attempts at
reconciliation, either by the rabbi or by the court, or by both.
The Austrian law also permits a divorce among Jews for the proven adultery
of the wife, in which case he can give her a bill of divorcement without
her consent. A Jewish woman cannot obtain a divorce because of the
adultery of her husband.
JUDICIAL SEPARATION.--A judicial separation may be granted for the
1. By mutual consent.
2. Conviction of either spouse for adultery or a crime.
3. Malicious abandonment.
4. Conduct endangering the life or health of spouse seeking relief.
5. Incurable disease united with danger of contagion.
6. Cruel and abusive treatment.