Austrian OGH: Maintenance Duty Met Even with Conditional Payments

Nov 14, 2025 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has recently clarified how to calculate post-marital maintenance under Section 68a of the Austrian Marriage Act (hereinafter, EheG), also addressing the legal implications of maintenance payments.

Maintenance Duty Met Despite Conditional Payment

The plaintiff, whose marriage to the defendant was dissolved in 2019, petitioned for post-marital maintenance. The court granted her EUR 607 per month beginning in November 2023, while denying her claim for arrears of maintenance.

The court of appeal rejected the claim in full. Pursuant to the established equalisation rate, the plaintiff’s financial need was to be determined by subtracting her own income, housing allowance, and any payments previously made. Since the defendant had satisfied his maintenance obligation, no arrears were due.

In her appeal, the plaintiff contended that payments made under reservation did not satisfy the debt, as she was unable to exercise unrestricted control over those funds. The OGH, however, dismissed this claim.

A maintenance debt is deemed expired when payments are made subject to a reservation of the right to recovery. Such reservations are recognized by law and enable repayment should it subsequently be established that there was no valid claim. Therefore, the court of appeal’s decision to credit these payments aligns with established legal principles.

Needs assessment under Section 68a of the EheG

The OHG has clarified that, pursuant to Section 68a of the EheG, ‘living expenses’ are not determined by actual expenditures but rather must be objectively assessed based on the standard rate of equalisation supplement. Personal income and social benefits are to be deducted from this amount, and a maintenance claim is only valid to the extent that such living expenses remain unmet.

The amount in question shall be determined in accordance with principles of equity and may be reduced or excluded for compelling reasons pursuant to Section 68a(3) of the EheG. The court of appeal’s calculation adhered to established case law. As there were no substantial legal questions presented, the appeal was denied.

OGH 4 Ob 88/25g (11 September 2025)