Since 2019, same-sex couples can marry in Austria. Likewise, opposite-sex couples can establish a registered partnership. Again and again, heterosexual couples decide against marriage but in favour of a registered partnership. This is sometimes because it is assumed that the registered partnership is a “marriage light” – also with regard to sexual fidelity.
In marriage, the (sexual) duty of loyalty applies. Sexual freedom in a marriage cannot be agreed upon in a binding way. If a married couple has demonstrably agreed on sexual freedom, infidelities cannot be accused in divorce proceedings. However, it is important to note that according to case law, the agreement of sexual freedom is not binding and can be revoked at any time – even unilaterally. A “contract” that extramarital love affairs are “allowed” therefore only lasts exactly as long as both want it too. Any person can unilaterally declare at any time that the concept of sexual freedom no longer fits after all.
How is this handled in a registered partnership? The Marriage Act explicitly mentions adultery as a serious marital offence. An infidelity can cost the cheater dearly in divorce proceedings. In the law on registered partnerships, one looks in vain for the word “fidelity”.
What does mutual trust relationship mean?
Fidelity is not mentioned as an explicit duty in the Registered Partnership Act, but the duty of mutual trust is. Therefore, the question has arisen again and again whether registered partners do not have to take (sexual) fidelity quite so seriously. Or whether the duty of mutual trust also includes fidelity. This has consequences for maintenance in the event of a dissolution of the registered partnership. Even if not every adultery-case leads to a divorce on grounds of fault, it is also not advantageous in divorce proceedings if the spouse can prove that the other has been unfaithful. A lost divorce case can lead to an obligation to pay maintenance, even after the marriage has ended. Why the legislator chose this linguistic distinction for the registered partnership compared to marriage is not entirely clear. Now, however, the Supreme Court has dealt with the issue.
the sexual fidelity and the supreme court
The Supreme Court dealt with the case (22 December 2021, 6 Ob 212/21a) that two men, married in Denmark in 2016, had last lived together in Austria and the relationship had come to an end. One of the partners had sexual contacts with different sexual partners behind the other’s back several times. This continued after he was told by his partner how much this behaviour hurt him. Even after a clarifying conversation, he continued to have sex with another person in the “marriage bed”, although he knew that his partner did not agree to this. Due to the partners’ habitual residence in Austria, Austrian law applied. The Supreme Court, without assessing whether the union of the two men was a registered partnership or a marriage, stated that even if the Registered Partnership Act does not explicitly mention “adultery”, it must nevertheless be assumed that sexual intercourse with another person can constitute grounds for dissolution. The Supreme Court further pointed out that the grounds for dissolution of a registered partnership mentioned in the Act are merely examples and that a comprehensive relationship of trust arguably also includes fidelity to the contracting partner.
Especially in this specific case, after there had been sexual relations with third parties several times and these were continued after it was expressed that this was offensive. According to the Supreme Court, such behaviour could certainly not correspond to a comprehensive relationship of trust. Furthermore, the Supreme Court emphasised that a view according to which homosexual men do not expect sexual fidelity would be a clear violation of the ECHR and that the legislator did not want to create a “narrow marriage” with the registered partnership.
Regardless of whether it is a marriage or a registered partnership, one thing can be said: If there is a dispute about the termination of the relationship, “jumping through hoops” will certainly not be to one’s advantage in court.
