Maintenance obligation during Imprisonment in Default (of Fine)

Feb 12, 2026 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) explained when a parent is required to pay maintenance while serving a default prison sentence for financial offenses.

In the case at hand, a father has been required to pay EUR 100 per month ever since 2018 for each of his three children as maintenance. After being convicted under the Austrian Financial Penalty Act (Finanzstrafgesetz, FinStrG), he began serving a default prison sentence from December 25, 2024, to March 5, 2025, because he had failed to pay a fine. During his jail term, he requested an exemption from his maintenance obligations. Meanwhile, the children applied for maintenance advances under the Austrian Maintenance Advance Act (Unterhaltsvorschussgesetz, UVG) and agreed that the father’s maintenance responsibilities would be suspended for the period in which they received these advances.

Lower court decisions

The court of first instance, as well as the regional court, declined to discharge the father from his maintenance obligation or to grant advances. Their reasoning was based on the fact that the imprisonment ordered by the authorities was brief, and the father had been able to keep his employment during this period.

The Court of Appeal issued a partial reversal of the previous decision, suspending the maintenance obligation for the duration of the father's detention. The suspension was granted on the grounds that the father lacked income during this period and consequently was not in a financial position to make payments.

Obligation to provide maintenance while in jail

The OGH determined that the father's period of incarceration was classified as imprisonment in default of payment of a fine under Section 20 of the FinStrG. The key criterion for establishing maintenance obligations is whether the parent possessed the actual ability to provide financial support.

Generally, a parent may be obligated to pay maintenance based on their potential earning capacity if they are willfully unemployed or underemployed. However, this obligation does not apply during periods of incarceration, as the individual cannot generate income or access assets for payment.

The OGH noted that the father could have completed community service while incarcerated, making it possible for him to pay a portion of his maintenance (Section 3a StVG, Section 179(3) FinStrG). Since this possibility was not considered during the proceedings, the decisions of the lower courts had to be set aside.

OGH 8 Ob 104/25i (30 September 2025)