OGH on the Abuse of Divorce Rights

Apr 26, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has ruled on the question of whether a repeated marriage and divorce from the same spouse constitutes an abuse of rights. Among other things, the exercise of a right is considered to be abusive if the intention to cause malice is the sole reason for exercising a right.

The applicant began receiving a widow’s pension in 1981 following the death of her first husband. A year later, she married her second husband. In 1988, she divorced him on the grounds of irretrievable breakdown. Up to 2019, she was married to her second husband a further 11 times and divorced him just as many times in accordance with Section 55a of the Austrian Marriage Act (Ehegesetz, hereinafter EheG).

The applicant and her second husband had lived in the same household since 1982. After their last divorce, their domestic arrangements in their flat remained unchanged. After the first eleven divorces, the defendant Austrian Pension Insurance Institution granted the plaintiff a widow’s pension and a lump-sum payment after each remarriage.

When the defendant refused to resume payment of the widow’s pension on the ground of abuse of the right to divorce, the plaintiff brought an action. Both the court of first instance and the court of appeal dismissed the case. The OGH upheld the decision of the lower courts.

In the event of remarriage, a widow is entitled to a lump-sum payment of two and a half times the annual amount of the monthly widow’s pension under Section 265 of the General Social Insurance Act (Allgemeines Sozialversicherungsgesetz, ASVG). If the new marriage dissolves due to divorce, the right to a widow’s pension resumes unless the dissolving of the marriage was due to the sole or main fault of the widow. The pension will be paid out, at the earliest, two and a half years after the end of the entitlement period.

It cannot be assumed that the couple’s marital relationship had irretrievably broken down, as the widow’s domestic situation had not changed since her first marriage. Therefore, the requirements of Section 55a of the EheG were not fulfilled. Consequently, since the claimant had unrightfully claimed to have been divorced before the Pension Insurance Institution, her application for a widow's pension constituted an abuse of rights.

10 ObS 108/23i (12 March 2024)