OGH on Notarisation of Dowries

Nov 8, 2024 Benn-Ibler Rechtsanwälte

In 1998, a ‘bridal gift’ had been promised to the bride at a Muslim wedding. According to the old version of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, hereinafter ABGB) this gift is to be understood as a dowry and, according to the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH), requires a notarised deed.

A dowry is a gift given by a husband to his wife on the morning after the wedding.

The parties to the dispute are Austrian citizens of Muslim faith. They married in 1998 at a registry office in Vienna. The Islamic wedding took place three days later. In their marriage certificate, written in German and Arabic, the imam confirmed, inter alia, that the defendant husband had declared his will to marry the plaintiff and that the dowry of his future bride was one Jordanian dinar and one kilo of gold as an additional payment. The couple had not agreed when the gold would be paid. In 2022, the couple was legally divorced on the grounds of equal fault.

At the time of the divorce, the wife had still not received the kilogram of gold from the dowry. She therefore brought an action for performance. The defendant argued that the dowry agreement was invalid because it should have been made in the form of a notarial deed.

The OGH stated as follows:

Until 31 December 2009, marriage pacts expressly mentioned in Section 1217 of the ABGB included a ‘morning gifts’, where were expressly regulated until that date in Section 1232 of the ABGB.

The reason why the man decides to give the woman a dowry or why the woman insists on it is irrelevant. The fact that according to the Qur’an the man is obliged to pay the dowry does not alter the fact that there is no legal obligation to do so and that a Muslim dowry is therefore voluntary within the meaning of former Section 1232 of the ABGB.

According to the Austrian Notarisation Act, the validity of marriage contracts is subject to the recording of a notarial deed. In the absence of a notarial deed, the OGH held, that the agreement between the parties concerning the payment of one kilogram of gold was legally invalid.

OGH 8 Ob 88/24k (26 September 2024)