OGH on Advance Agreement on Matrimonial Homeownership

Dec 6, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) had to clarify whether a prior agreement on the marital home was valid in the context of property settlement proceedings.

The parties’ marriage, contracted in June 1990, was dissolved in 2018, with the husband being found mainly at fault. The wife had brought into the marriage a property (which she still owned solely) on which the matrimonial home was built during the marriage. In December 2015, the spouses agreed in a notarial deed to mutually waive compensation for the matrimonial home in the event of a future divorce and to divide the matrimonial property by mutual consent. Ever since the husband moved out of the house, the wife has been living in their former home.

The husband claimed damages of EUR 362,500 for the house on the marital property and for the division of the marital savings. The wife objected that the matrimonial home was not subject to property division under the divorce settlement.

The court of first instance awarded the husband compensation in excess of EUR 110,000 and dismissed the remainder of the claim. The court of appeal held that the notarial deed was a formally valid advance agreement within the meaning of Section 97(1) of the Austrian Marriage Act (Ehegesetz, hereinafter EheG). Thus, the agreed waiver of compensation included all of the wife’s contributions as well as the husband’s financial contribution to the construction of the residential building (among other things).

The OGH did not share this view, saying:

The court is only bound by the prior agreement on the legal assignment of the matrimonial home to one spouse. However, an agreement on compensation for the creation of the matrimonial home through the use of marital property goes beyond the legal allocation of the matrimonial home and concerns the distribution of (residual) assets, which are subject to equitable adjustment under Section 97(2) of the EheG. An agreement to this effect can therefore be corrected under the conditions of Section 97(2) of the EheG.

The OGH concluded that the question of whether and to what extent the husband should be awarded compensation for the matrimonial home, which in the present case constituted a matrimonial acquisition, should be clarified in the proceedings to be continued.

OGH 1 Ob 95/24p (24 October 2024)