OGH: Right to a partial copy of the divorce settlement
The Austrian Supreme Court (Oberster Gerichtshof, OGH) ruled that an application for the issuance of a partial copy of a divorce settlement for submission to the land registry court is to be granted in accordance with Section 178 para 4 of the Non-Contentious Proceedings Act (Außerstreitgesetz, AußStrG).
The proceedings in question are based on an amicable divorce. The divorce settlement contains, inter alia, provisions on the transfer of real estate. The applicant applied for a partial copy of the part of the settlement concerning the transfer of real estate in order to submit it to the land registry court. He argued that not the entire divorce settlement should be publicly available at the land register. He justified this by stating that the issuing of a partial copy was not expressly prohibited. In doing so, he referred inter alia to the decision of the European Court of Human Rights (ECHR) of 06.04.2021, 5434/17, Liebscher v. Austria.
The court of first instance and the court of appeal dismissed the application. There was no legal basis for the authorisation. Rather, a change in the law was required to meet the applicant's request.
The OGH took a different view:
The ECHR held that the obligation to submit a complete divorce settlement to the land registry court violates the right to protection of personal data (Art 8 European Convention on Human Rights). In this context, it was "only" the publication of the land register documents that was problematic. The OGH, however, considers the applicant's concern to be understandable and refers to Sec. 178 para 4 AußStrG analogously. This provides that the person who can credibly show any other impairment of privacy can demand a separate copy of orders of a decision of inheritance. According to the materials, this provision is based on a "discretionary maxim". In the light of the ECHR decision, the OGH therefore assumes a loophole. For if the parties had no right to request a partial copy, they would have to rely on the goodwill of the family courts, which could issue partial copies at will.
The application was therefore to be granted analogously to Sec. 178 para 4 AußStrG.
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