The author of this post is Simon Laimer of the University of Linz.
By a ruling of 10 December 2020, the Austrian Supreme Court addressed a case relating to a statement of fault in respect of divorce, i.e. a statement that one spouse is to blame for the breakdown of marriage (the ruling’s reference is 3 Ob 58/20f). The case raised the question of whether, for the purposes of determining the applicable law, the matter ought to be characterised as a matter relating to divorce, or rather as a matter relating to maintenance. Under Austrian law, one key implication of fault is that the ex spouse who is found to be at fault is basically not entitled to maintenance.
The plaintiff sought a declaration that the defendant was solely to blame for the breakdown of the marriage, which had previously resulted in a final divorce decree by the Tribunal of Brussels. The defendant objected inter alia that the Belgian divorce decree could not be supplemented by a declaration of fault. The court of first instance dismissed the action (on the grounds of equal fault). The Court of Appeal amended the decision to find that the defendant was predominantly at fault.
The generally accepted view in Austrian case law (see here) and doctrine (cf. Nademleinsky/Weitzenböck in Schwimann/Kodek, ABGB, 5th ed.  § 61 EheG N° 21; Koch in Koziol/Bydlinski/Bollenberger, ABGB, 6th ed.,  § 61 EheG N° 4) is that even if a foreign court has terminated the marriage on the basis of a provision of a foreign legal system without a finding of fault (here, Belgian divorce law, which abandoned the principle of fault in 2007), the interested spouse may still seek a statement of fault as provided for under Section 61(3) of the Austrian Marriage Act.
The Austrian Supreme Court upheld the extraordinary appeal. It observed that an action to supplement a divorce decree by a statement of fault does deal with the question of fault for the breakdown of marriage, but it does so for the purposes of determining the implications of divorce as regards maintenance. Consequently, there is only a need to supplement a foreign divorce decree with an award of fault if the post-marital maintenance is governed by a substantive law whereby the enforceability of a maintenance claim depends on whether the opposing ex spouse is predominantly at fault for the breakdown of the marriage, or not.
Article 1(2)(g) of the Rome III Regulation on the law applicable to divorce and legal separation expressly excludes from its scope maintenance obligations. Therefore, although the supplementary action complements the divorce proceedings with regard to the question of fault, its only objective is to make a separate decision on a (preliminary) question relevant to the maintenance claims. It follows that the applicable substantive law is rather to be determined in accordance with the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations.
Pursuant to Article 3(1) of the Hague Protocol, maintenance is governed, as a rule, by the law of the State in which the maintenance creditor has his habitual residence, which in the specific case leads to the application of Austrian law. An exception applies if one of the parties objects and claims that there is a “closer connection of the marriage to another State”. As this had not yet been discussed with the parties, the decisions of the lower instances had to be set aside to supplement the proceedings. The court of first instance will therefore have to give the parties the opportunity to state their position on the matter.