Interim protection in Austrian property division: property, savings and land-register steps

What falls within the division and what may be excluded

Section 81 EheG covers marital household property and marital savings in the division. Household property includes assets used by both spouses during their shared married life. Marital savings are investments accumulated during that period and ordinarily intended to be realised. An interim application needs to connect the asserted right to an asset that may fall within this pool.

§ 82 EheG generally excludes assets brought into the marriage, inherited or received as a gift from a third party. It also covers items for personal or professional use, assets belonging to a business and company interests that are not merely investment holdings. The asset's origin and actual function can therefore matter as much as the name on a title or account.

§ 82 Abs 2 EheG allows a family home or certain household items brought in, inherited or gifted to be included in specified circumstances. These can include an agreement, a spouse's need for the home to meet essential needs, or a need of a joint child that merits consideration. The statutory conditions must fit the facts.

Acquisition documents, financing records, land-register extracts, account movements and evidence of joint use help classify an asset. A balance alone does not show when funds accrued or whether they count as marital savings.

When interim protection may be available

§ 381 EO requires a statutory ground for protection. For a threatened asset transfer, the central issue is often whether the claim's pursuit or enforcement would be defeated or materially impeded without an order. Relationship conflict or the mere possibility of a sale does not, by itself, establish a concrete risk.

The asset, the asserted division right and the proposed transaction need to be considered together. A sale listing, draft contract, announced appointment, specific withdrawal instruction or transfer already underway may be relevant. The facts should explain how the particular step could prejudice a later division.

§ 381 Z 2 EO addresses the prevention of threatened violence or irreparable harm. That ground has a different focus from preserving a future property right. The correct legal basis depends on the asserted right and the nature of the risk.

Which measure fits a property or savings

For divorce, annulment and asset-division proceedings, § 382 Z 8 lit b EO allows an interim arrangement for the use of marital household property or the securing of marital household property and marital savings. A use order may determine who can use the family home while proceedings continue. A preservation measure aims to keep a specific asset available until the division is decided. Both remain interim measures; the final allocation still has to be decided.

For real property or a right recorded in a public register, § 382 Z 6 EO may allow a prohibition on sale, encumbrance or pledging where the asserted right relates to that asset. The application should identify the title, the link to the claimed right and the concrete risk. Separation alone does not create a land-register restriction.

Section 382 Z 7 EO can concern an order to a third party where the opponent's obligation to that third party relates to the asserted right. For a bank balance, identify the claim against the bank, who holds it and how it connects to marital savings or the claimed payment right. A request relating to one balance does not automatically freeze the whole account.

The court must be able to connect the requested measure to the asserted right and evidence. A request covering every asset or account leaves that connection unclear.

When § 379 EO applies to a money claim

§ 379 EO concerns the interim protection of money claims. Under § 379 Abs 1 EO, an interim order is unavailable to the extent that enforcement measures against the opponent's assets under § 370 ff EO can secure the same purpose. Where that exclusion does not apply, § 379 Abs 2 EO requires a statutory risk. This includes circumstances in which the opponent would probably defeat or materially impede recovery through damage, concealment, removal or disposal of assets, as well as the enforcement-abroad situations set out in the Act.

Under § 379 Abs 3 Z 3 EO, a third-party prohibition may cover a payment or delivery claim the opponent has against another person. The order tells the opponent not to dispose of or collect that claim and tells the third party not to pay or deliver in a way that could defeat or materially impede enforcement. § 379 Abs 3 Z 5 EO also allows a prohibition on selling or encumbering the opponent's real property or rights recorded in a public register. A bank balance is a claim against the bank, but the application must still identify the money claim, account holder, risk and measure sought.

A right to a share in marital savings is a separate division claim. It does not become a due payment claim simply because an account exists. Section 382 Z 8 lit b EO specifically addresses the securing of marital savings in the family-law proceedings it covers. Where an independent payment right is also asserted, each basis should be analysed on its own terms.

Which court to approach and what to include in the application

§ 378 EO allows an interim order before or during the main proceedings. § 387 EO governs jurisdiction. If the main proceeding is already pending, the court handling that case is generally the starting point. For a measure under § 382 Z 8 lit b EO sought before the main proceeding begins, § 387(3) EO points to the court that would have jurisdiction over the main case. The competent district court depends on the actual main proceeding and the jurisdiction rules.

§ 389 EO requires a specific application. State the measure requested, its proposed duration, the right to be secured and the facts said to establish that right and the risk. Identify real property by its land-register details and describe an account as precisely as legally possible. Explain the transaction feared and how it could affect the later division.

A general request to protect assets does not tell the court what to prohibit or regulate. A short chronology with dated exhibits makes the request easier to assess. If a document is not available, explain what information is missing and the factual basis for the concern.

Evidence and the possibility of security

Organise evidence for the claimed right, the asset's inclusion in the division and the risk. For real property, useful material may include a current land-register extract, purchase or gift documents, financing records and specific messages about a sale or mortgage. For an account, relevant records may include lawfully available statements, account ownership, the balance, the origin of deposits and identified transactions. Save messages and appointment details with their date, sender and context.

If bank or company records are missing, the separate article on disclosure and production of bank and company records in division proceedings addresses that information route. It helps establish asset facts. An information request and an application for interim protection serve different purposes.

Under § 390 EO, the court may make an interim order conditional on security. That can address potential loss to the opponent. The law does not prescribe one fixed deposit for every application. If security is ordered, follow the amount and conditions stated in the court's order.

The one-year division deadline is a separate step

§ 95 EheG concerns the claim for division after the divorce becomes final. The claim must be raised within one year of finality, by agreement or by an application to the court. The date on which the divorce decision becomes final is therefore central. A question about interim protection and the later assertion of the division claim serve different purposes.

After a divorce, check the finality date, any agreement and the procedural history against the documents. The separate article on the asset-division application and one-year period covers the application and its supporting records.

If property has already been transferred or reduced

A completed transfer raises a different question from a sale that is still pending. Under certain conditions, § 91 EheG may require the value of particular assets to be taken into account where a spouse reduced divisible property, without the other's consent and contrary to the spouses' previous way of life, during the two years before divorce proceedings began or, if the marital household ended earlier, during the two years before it ended.

The rule applies to property within the division. It does not automatically invalidate a gift or transfer or replace a separate claim for unwinding the transaction. The asset's origin, consent, timing, consideration and use need individual review.

For a family home already transferred to a child, the separate article on transferring the family home to a child considers that scenario and its possible division consequences.