Divorce Saloon speaks with Dr. Alfred Kriegler a top Divorce and Matrimonial attorney
in Vienna Austria
and a member of the International Academy of Matrimonial Lawyers
Divorce Saloon: Good morning Dr. Kriegler. Thank you for agreeing to speak with us at such short notice.
Dr. Kriegler: Thank you. It is my pleasure.
Divorce Saloon : Dr. Kriegler, would you mind telling us a bit about your background and credentials? For example, how long have you been practicing divorce and family law, what relevant associations do you belong to? What recent career successes have you enjoyed?
Dr. Krieger: I have practiced divorce and family law for more than 25 years. My father was a divorce lawyer; so it was quite a natural segue for me to enter the field. I have sent you my CV and so you know my credentials. I do not want to bore you with all of it.
Divorce Saloon: Indeed, Dr. Kriegler. These are very impressive credentials and you appear to have achieved great success as a divorce lawyer. What is the secret of your success?
Dr. Kriegler: Well, I do have a competitive advantage because I am a specialist in this area, not a generalist. I can deal with clients who speak many different languages because I am fluent in German, French, English, Italian and Spanish.
Divorce Saloon: Wow! That is impressive for any lawyer anywhere!
Dr. Kriegler: Most of my competitors here in Vienna do not even speak English so this gives me a competitive advantage. However, Vienna is a small market and Austrians are not so divorce prone as in other countries such as the UK or the US. We do not have so many big money cases, for example. I would think the market is better in Germany or Scandinavia where there is a greater concentration of wealthy clients.
Divorce Saloon: Speaking of wealthy clients and big money cases, would you say that Austria is a safe haven for rich foreigners – from the U.S. and UK for example – who are seeking to “protect” assets during, or in advance of, a divorce? Is there a problem with rich folks using the Austrian laws and system to hide marital assets and property in Austria, in other words?
Dr. Kriegler: Austria is not a good jurisdiction to hide assets but on the basis of Austrian law and the way it is applied, there may be benefits in wealthy clients commencing proceedings in an Austrian court rather than their own local court.
Divorce Saloon: For example?
Dr. Kriegler: For example inherited assets and donated assets and entrepreneurs who have company assets. These assets are not treated as marital property in Austria in the same way as they are in places like the U.K. This is a clear advantage for wealthy clients.
Divorce Saloon: But how does the Austrian court get jurisdiction over a non Austrian citizen? What if this is an American entrepreneur we are talking about who wants to “take advantage” of the Austrian divorce laws?
Dr. Kriegler: Austrian courts do not have jurisdiction over an American entrepreneur, unless he or she is also an EU citizen. He or she would first have to settle in Austria in order to take advantage of the Austrian court’s jurisdiction.
Divorce Saloon: And how long does that take?
Dr. Kriegler: Usually it would take about six months to establish residency in Austria. But you have used an extreme example with the American entrepreneur. The rules are not so stringent for EU residents now that we have the Brussels Agreement.
Divorce Saloon: What is the Brussels Agreement?
Dr. Kriegler: The Brussels Agreement allows EU citizens to forum shop when getting divorced allowing them to choose the court and jurisdiction which best serves their needs. That is to say, which court is competent and which law is to be applied. Local law is not your only option when you are an EU citizen who is getting divorced. This is particularly important in big money cases. The attorney has to do a comparative study in order to advise the client which jurisdiction will give the best outcome.
Divorce Saloon: I see. Is it accurate to say that Austrian law does not permit no-fault divorce? In other words a party must always allege and prove a basis or grounds for divorce before a divorce is granted under Austrian law? I believe I read on the internet that Austria does not have no-fault divorces.
Dr. Kriegler: Ninety percent of divorces in Austria are by mutual consent. In the other ten percent of cases, parties must prove fault if it is alleged. There are basically 3 ways to get divorce in Austria: by mutual consent; by separation and the separation must be for 3-6 years prior to the adjudication of divorce and proving fault. Divorce by consent is obviously easiest. Parties must be married at least six months in order to get a divorce by consent.
Divorce Saloon: I see. Can parties get an Annulment in Austria?
Dr. Kriegler: No.
Divorce Saloon: Talk to us about children and divorce in Austria. Do you feel that current divorce trends in Austria are favorable to children? Does the court use a “best interest of the child” standard in making custody decisions? If not what standard does the court use? How is child support determined? How long is a child entitled to child support? What is the “Playboy Cap”?
Dr. Kriegler: The courts use the “best interest of the child” standard when dealing with children in Austrian divorce courts. There are some pending changes in the current legislation which could alter how custody is handled by Austrian courts. A proposed change in the Children Act would allow for the possibility of sole custody. Also the law after February 1 2013 could require that parenting plans be written in detail as part of the divorce settlement, and could make these mandatory as opposed to optional. The idea of 50/50 custody is legally and practically impossible. There is the concept of the Home of First Order, where the child spends most of his time. The parent at that home would be deemed the custodial parent. The “Playboy Cap” results from the Austrian court assumption that too much money is bad for a child. Each year a judge in Vienna calculates the average needs of a child in Vienna. It is a statistical value. Both mother and father have to pay a certain amount. The Playboy Cap is double the average need amount. It does not matter if the parent is a billionaire they only pay double the average need. There might be minor exceptions for medical needs or other special needs but usually there is a cap. This is another reason for clients in big money cases to use the Austrian court. It is impossible to use the children as an excuse to get more money in a divorce settlement.
Divorce Saloon: Is there a preference for maternal custody in Austria would you say?
Dr. Kriegler: Yes definitely. Until the child is 14 or so, fathers don’t generally stand a chance of getting custody.
Divorce Saloon: What about women and divorce? Is there a presumption of spousal support and alimony for women under Austrian law? Under what circumstances can alimony be withdrawn? Is there societal stigma in Austria directed at divorced women?
Dr. Kriegler: There is no presumption of spousal support. An application must be made or there should be an agreement. No alimony will be allowed where the wife is deemed to be at fault unless the wife is a young mother or is a “privileged wife”. Alimony will stop when the wife remarries or cohabits. There no stigma surrounding divorce today. Perhaps there was back in the 1970s but today women are more economically independent and divorce is not a big deal. That said, men still make 1/3 more than women in Austrian society. And you do have a greater number of non-working wives these days who have to fed somehow. So a maintenance solution is needed. And that is why fault is so important. The amount of maintenance could be influenced by who is at fault and whether it can be proved. Austria is not like Germany which abolished the concept of fault. A wife can block the divorce if the husband is at fault and make him wait 3 years to obtain a decree which gives her some control.
Divorce Saloon: What is a privileged wife?
Dr. Kriegler: A privileged wife is over 40 and has been married more than 15 years. She can successfully block a divorce. She is also entitled to a full widow pension.
Divorce Saloon: Let’s change gears a bit. What would you say are the emerging trends in this area of practice in your neck of the woods? What has changed over the last decade or so? And have the changes been for the better? Importantly, how has the technological/digital revolution changed how divorces play out in Austrian courts, if at all?
Dr. Kriegler: Austria is probably more electronically plugged in than some other countries in the area. Most communication is done electronically now between counsels and the court. This is an interesting trend and it improves efficiency. I think we can be proud of that.
Divorce Saloon: What is the biggest challenge for a divorce lawyer in Austria today?
Dr. Kriegler: The current law allows parties to file divorces without attorneys. So a lot of people divorce by mutual consent without a qualified lawyer. Then they find out they signed unfair contracts and they come running to the lawyer to fix it. They can’t understand why the lawyer can’t fix it, why he can’t help, why it is too late. This is a problem. There is pending legislation that would make it mandatory for clients to consult with an attorney prior to filing for divorce. I think this is a good idea.
Divorce Saloon: But in the U.S. most states would allow a party to re-open a divorce action if there is fraud discovered after the signing.
Dr. Kriegler: Not in Austria. The state wants to avoid litigation except in extreme circumstances. So usually there is no ability to reopen a case.
Divorce Saloon: What is the future of divorce law and practice in Austria in your opinion?
Dr. Kriegler: The future must include unifying Europe in Family Law, reducing complexities of the various and sometimes conflicting laws for law consumers. The Brussels Agreement was a good beginning but we need to do more. It is a process, hard to digest all the reforms sometimes. Nationalism is an issue of course. But heightened European legal cooperation in this area will likely happen over time because there will be more legislative changes. And that is good for the future.
Divorce Saloon: Thank you for speaking with us today. This was very insightful.
Dr. Kriegler: My pleasure.
Rechtsanwalt Dr. Alfred Kriegler
Hoher Markt 1
1010 Vienna, Austria
Tel: 0043 (0)1 533 42 65
Fax: 0043 (0)1 533 42 65-4
Born in Vienna/Austria, Baccalauréat Lycée Francais de Vienne; during the studies various language study trips abroad. Doctorate in jurisprudence from University of Vienna/Austria; during the studies several federal and talent grants from the Academic Senate of Vienna and various study programs abroad. Master of Business Administration from INSEAD at Fontainebleau/France. Obtained a diploma with summa cum laude from the Papal University Gregoriana in Rome/Italy “schola literarum latinarum”. Admission to the bar. Having worked for many years in his father’s practice which also specialized in family law establishment of independent practice at 1010 Vienna, Hoher Markt 1. Registered mediator. Training for Collaborative Law. Ranked by “Format” for many years among the top three Austrian family lawyers.
President of the European Chapter International Academy of Matrimonial Lawyers (IAML). Member of the executive committee and regional delegate to the European Lawyers’ Association, former Vicepresident (U.A.E.). “Founding member” of the European Institute for Human Rights (IDHAE). Founder and honorary president of the Lawyers’ Association of Vienna (“Anwaltsclub”). Member of the Austrian association for violent-free education of children (“Verein für gewaltlose Erziehung”). Dr. Alfred Kriegler supports Oiko-Kredit, a Christian organization dedicated to providing micro loans in third world. “Patron” of the museum “Albertina”. Member of the “director’s circle” of the “Kunsthistorisches Museum”. Sponsor of “Friends of the Vienna State Opera”. Member of the “Gesellschaft der Musikfreunde”. Member of the “Wiener Konzerthaus”. Founding member of the “Freunde der Wiener Wagenburg”.
Negotiates in German, English, French, Italian and Spanish. Author or co-author of various books (The Divorce Advisor; The Divorce Advisor for Men; Family Law in Europe; Family Law-Jurisdictional Comparisons; International Pre-Nuptial and Post-Nuptial Agreements; Intimacy, Sexuality, Tabooing in old age; Passions; Hits and Misses, …); he is happily married and father of three children.