Section 71 of the Austrian Marriage Act determines who must provide post-divorce maintenance when both the divorced spouse and relatives may be considered as maintenance debtors. As a general rule, the divorced spouse obliged to pay is liable before the relatives. A different order applies where payment would endanger that spouse's own adequate maintenance.
Relatives are also liable if enforcement against the divorced spouse is excluded or substantially difficult in Austria. If a relative provides maintenance in that situation, the claim against the divorced spouse passes to that relative. The transfer may not be asserted to the disadvantage of the person entitled to maintenance.
This article addresses the order of liability and the statutory transfer of the claim. General maintenance calculations, child maintenance and the effects of a new partnership require separate assessments. The maintenance order, financial obligations and actual enforceability in Austria are central to the review.
Which liability question comes first under section 71?
The short check separates liability order, enforceability and statutory transfer.
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Which starting position applies to your case?
Choose the situation closest to your position. The orientation does not replace a review of the maintenance title and financial circumstances.
Overview of all answers.
Clarify the spouse's basic order of liability
Read the maintenance order or settlement and compare the payment obligation with the divorced spouse's financial ability. Section 71(1) places the divorced spouse before the relatives as a general rule.
Review the risk to adequate own maintenance
Compare the divorced spouse's income, other obligations and necessary personal expenses. This concrete financial account shows whether payment would endanger adequate own maintenance and whether the relatives rank before the spouse.
Classify enforceability and statutory transfer
Document why enforcement against the divorced spouse is excluded or substantially difficult in Austria. If a relative has therefore provided maintenance, the statutory transfer of the claim against the spouse must be reviewed separately.
What does section 71 say about post-divorce maintenance?
Section 71(1) places the divorced spouse obliged to pay first. The relatives of the person entitled to maintenance are generally liable only after the spouse. This order reflects the special maintenance relationship created by the divorce and does not determine the amount of maintenance by itself.
The legal basis of the claim must be secured first. A court order, settlement or other binding agreement can show what maintenance is due and when payments should have started. The question of liability order follows from that basis. The article on settlement, waiver and later change considers the importance of an existing agreement from another angle.
When do relatives rank before the divorced spouse?
The statutory exception applies where the divorced spouse, after taking other obligations into account, would endanger adequate own maintenance by making the payment. The relatives then rank before the spouse. The assessment must bring income, existing duties and necessary personal expenses together.
A bare statement that maintenance is too high is insufficient. The same applies to listing individual debts without a dated and financial explanation. The review must identify which obligations exist, which expenses are necessary and how the requested maintenance affects the spouse's adequate own maintenance.
The change in order answers who must rank first. It does not decide whether the person entitled to maintenance has a claim in principle or what the amount should be. Those questions remain separate.
What if there is no maintenance claim against the spouse?
Section 71(1) also covers the situation where the divorced spouse is not liable to provide maintenance to the other spouse. In that case the relatives of the person entitled must provide maintenance under the general rules on maintenance obligations.
This situation has a different legal starting point from the spouse simply being unable to pay. The existence and legal basis of a claim against the spouse must be classified first. The possible maintenance duty of relatives is then assessed under the general rules.
The statutory order of liability should therefore remain separate from a general calculation of maintenance. Child maintenance, maintenance during marriage and the financial effects of a new partnership each have their own legal basis. The maintenance topic page provides a broader overview of these questions.
When does enforcement become difficult in Austria?
Section 71(2) provides for relatives to be liable where enforcement against the spouse obliged to pay is excluded or substantially difficult in Austria. The statutory wording therefore focuses on actual enforceability. A simple delay in payment does not answer this question by itself.
The review should record the person's location, available service options, existing decisions and steps already taken. A foreign connection is a fact that must be described. Whether it makes enforcement in Austria excluded or substantially difficult depends on the circumstances and the legal routes that remain available.
Liability of relatives under this provision addresses a specific enforcement problem. It is not a general substitute for every unpaid maintenance amount. The obstacle and each payment must therefore be traceable.
How does the claim transfer work after payment?
If a relative provides maintenance in the situation described by section 71(2), the claim against the divorced spouse passes to that relative. The transfer follows from the statute. It must therefore be distinguished from a voluntary assignment, a pledge or a sale of a claim.
The transfer concerns the claim against the divorced spouse to the extent that the relative provided maintenance. The person entitled retains the protection expressly stated in section 71(2). The transfer may not be asserted to that person's disadvantage. The beneficiary's own outstanding maintenance and the relative's recourse should be recorded separately.
The recipient, purpose, period and amount of each payment matter for the classification. A general statement that a relative provided help does not establish the scope of the transfer. The payment must be connected to the statutory situation.
Which documents clarify order and recourse?
The first file should contain the maintenance order or settlement, a monthly overview of amounts due and paid and the communication about missed payments. For the spouse's order of liability, income records, evidence of other obligations and proof of necessary expenses are relevant.
Where enforcement is said to be difficult, retain service attempts, known address information, procedural steps and replies from courts or authorities. For the statutory transfer, add the relative's payments with date, amount and purpose. The first consultation checklist helps structure the basic records.
Arrange the documents in a timeline. Mark the start of the maintenance obligation, the first arrears, steps taken against the spouse and each relative payment. This shows which facts concern the liability order and which may trigger the statutory transfer. The article on maintenance waivers also shows why the exact wording of an agreement should be read first.
Which situation matches the starting position?
Section 71 separates liability order, the existence of a claim and enforceability.
| Starting position | Statutory question | First documents | |
|---|---|---|---|
| Spouse first | The divorced spouse can generally provide the maintenance. | Under section 71(1), the spouse is liable before the relatives. | Order or settlement, income, payment overview |
| Own maintenance at risk | Payment would endanger adequate own maintenance after other obligations are considered. | The relatives rank before the divorced spouse. | Income, obligations and necessary expenses |
| Enforcement difficult | Enforcement against the spouse is excluded or substantially difficult in Austria. | Relatives are also liable. After their payment, the claim against the spouse may pass to them. | Service and procedure records, relative payments |
The table explains the statutory framework. It does not determine a maintenance amount or liability in an individual case.
Four steps for reviewing order and recourse
A clear sequence separates the claim, liability order and payment.
Secure the legal basis
Read and store the maintenance order, settlement or other binding basis in full.
Review the order
Assess the spouse's ability to pay and any risk to adequate own maintenance.
Document enforceability
Record service, location, proceedings and concrete obstacles to enforcement in Austria.
Classify payments
Record each relative payment by date, amount, purpose and maintenance period.
For preparation: Keep three separate overviews: maintenance due, the divorced spouse's financial obligations and payments made by a relative. This makes it clear which issue concerns liability order and which concerns statutory transfer.
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Relatives liability and recourse under section 71
Are relatives always liable before the divorced spouse?
No. As a general rule, the divorced spouse obliged to pay is liable before the relatives. The relatives may rank first where payment would endanger the spouse's adequate own maintenance, among other statutory situations.
Is a delay in payment enough to involve relatives?
A delay alone does not answer the question under section 71(2). It must be reviewed whether enforcement against the spouse is excluded or substantially difficult in Austria.
What happens when a relative provides maintenance?
In the situation covered by section 71(2), the claim against the divorced spouse passes to the relative who provided maintenance. The transfer may not be asserted to the disadvantage of the person entitled to maintenance.
Which documents matter for the order of liability?
Important records include the maintenance order or settlement, payment history, income records and other obligations of the divorced spouse and documents showing the enforceability of the claim in Austria.
Is statutory transfer the same as a voluntary assignment?
No. The transfer under section 71(2) follows from the statute when a relative provides maintenance in the described situation. It is distinct from a voluntary assignment or pledge.
Related topics
Post-divorce maintenance: settlement, waiver and later change
Review the legal basis, agreement and possible later adjustment together.
Maintenance waiver in divorce
Classify the scope and later effects of an agreement.
Maintenance topic
Prepare spousal maintenance, child maintenance and evidence in context.
Prepare the first consultation
Collect documents and open questions for the first legal review.