Austrian OGH: Are Pensions Subject to Post-Marital Division?

May 16, 2025 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has recently ruled that private pension products with a realisable economic value prior to retirement are generally subject to post-marital division.

In the case at hand, the marriage between the parties, which had been entered into in Austria in 2003, was dissolved by a court ruling on 23 September 2022 due to the husband’s sole fault. The wife applied for division of their marital property and savings, seeking compensation for the marital savings which are predominantly held by the husband and include pension products purchased by him. However, the husband argued that the pension products were not subject to division as they were intended for his own retirement provision.

Both lower courts assumed that retirement benefits products and the funds therein were not subject to division following marriage.

However, the OGH did not share this opinion and overturned the lower courts' decisions, referring the case back to the court of first instance for a new hearing.

To determine whether a private pension scheme financed from marital funds is subject to post-marital division as marital savings, or exempt, the decisive factor is whether it constituted a realisable asset at the time of dissolution of the marital partnership. If so, the pension product must be allocated to the estate and divided between the spouses at this value.

This rule can only be waived if the private retirement savings plan was acquired to compensate for missing or insufficient state pension entitlements, based on a legal obligation. However, this is currently only considered under the foreign pension law to which a spouse is subject.

(OGH, 1 Ob 140/24f, 25 March 2025)