When two people get divorced, in most cases they lived together in some form beforehand. At least as long as both still wanted the marriage. The common home, i.e. the place where the spouses had their centre of life, can be called the marital home. It is irrelevant whether this place is a houseboat, a house, a mobile home or a classic three-room rented flat. The marital home enjoys a special status. Already during the marriage but also afterwards.

In principle, property that has been brought in, donated by a third party or inherited is excluded from the division in the case of divorce. This may be different in the case of the marital home. For example, in the case of an urgent need for housing of one spouse or a common child. Now there are many married couples who live neither in a condominium nor on their own property, but in a rented flat. Even in this case, you can become very fond of the flat. It is not uncommon that both spouses would like to stay in the flat and neither pushes to give it up voluntarily. What is the legal situation with a rented flat in the event of divorce?

What is important in regards to a rented flat?

The first step is to determine whether the rented flat in question is also the marital home. Only then does the rented property enjoy the special status mentioned above. If it is the holiday cottage or the allotment garden, which is only used at weekends, there are no special rules. As already mentioned, the marital home is regularly the “home” in which the spouses lived together until the divorce or separation.

• Amicable divorce?

Most marriages in Austria are divorced by mutual consent (after sometimes lengthy negotiations). In the context of a divorce by mutual consent, the spouses must agree on the essential consequences of the divorce. This also includes the property claims in relation to each other. If there is such a rented flat, the spouses must agree on the further fate of the matrimonial home.

If the rented flat is not subject to the full scope of application of the Tenancy Act (MRG), an agreement in the context of a divorce is generally only binding on the spouses, but not automatically on the landlord or landlady in a first step. Therefore, it makes sense to also obtain the consent of the landlord or landlady. If both were tenants up to now, one person could withdraw from the contract and the other remaining spouse could rent the flat alone in the future. It would also be conceivable to change the contractual partner if only one spouse had been a tenant. In the event that the rented flat is subject to the full application of the MRG, it may also be possible for the part leaving the flat to transfer his or her position in the sense of a takeover of the contract.

• Disputed divorce?

If an amicable divorce is unsuccessful and a contested divorce occurs, or after the contested divorce the division proceedings take place, courts must decide on the marital home/rented flat and who may “keep” it. For example, the competent court may order a change of tenant and decide that one spouse will now continue to rent the flat instead of the other person. It is also possible for the court to order that the flat, which was previously rented jointly, will only be rented by one person in the future. The court decision can therefore change the person of the contracting party or delete a tenant from the tenancy agreement. In doing so, the court is not bound by other provisions of the contract or even by the landlord’s or landlady’s consent. However, it is not possible for the court to change the contract itself or to grant the spouse remaining in the flat a better right than previously existed under the contract.

What does the court include in its decision?

In principle, the aim of postmarital property division is to share the fruits of joint family economic activity and to create justice. As a rule, the marital home is to be left to the person who is more dependent on it. Where the joint children stay or live must also be taken into account, but also who has contributed how much.

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