There are many ways for lovers to publicly profess their love for each other. However, when it comes to the mutual obligations within the relationship, there are key differences in terminology between the EPG and the Marriage Act, a legacy of the first version of the EPG. Marriages are “concluded” and “divorced”, registered partnerships are “established” and “dissolved” – which should hardly make a difference for the persons concerned once the “marriage” or “partnership” has broken down. More relevant is that according to the text of the law, spouses owe each other mutual “fidelity”, while registered partners instead must sustain a “comprehensive relationship of trust”.
The legislator did not want to create a “narrow-minded marriage” in the case of registered partnerships (this terminology is taken from parliamentary material) – nevertheless, some perceived that the absence of the term “fidelity” created something like a “relaxed duty of fidelity” for registered partners. It was subsequently rightly pointed out that this could also be viewed as prejudice that same-sex partners maintain less stable relationships and also do not expect sexual fidelity from one another.
The Supreme Court recently had to deal with these fundamental questions through a concrete case. One of the male partners of a same-sex marriage contracted abroad maintained intimate relations with different sexual partners behind his husband’s back upon the couple’s return to Vienna – and did not stop doing so even when he was told by the betrayed partner how much it hurt him. The final break came about when the next affair was consummated in the couple’s conjugal bed.
The subsequent court proceedings initially dealt with the question of whether the union – entered into several years before the introduction of marriage for same-sex couples in Austria – was to be judged according to the provisions of the EPG or those of the Marriage Act. It was obviously argued that this would make a difference for the assessment of the offending behaviour, especially since section 15 EPG lists points that are “particularly” considered to be examples of serious misconduct in marriage but does not explicitly mention adultery.
The Supreme Court first concluded that as marriage was now possible for homosexual couples in Austria, the dissolution of marriages which were concluded abroad and would previously “only” have been considered a registered partnership in Austria, are no longer to be assessed according to the provisions of the EPG, but according to those of the Marriage Act.
Subsequently, the Supreme Court stated very clearly that sexual intercourse with a person outside the relationship (regardless of whether same-sex or opposite-sex) is in any case grounds for dissolution within the EPG. The “comprehensive relationship of trust” delineated by the EPG thus includes – and this is stated in great clarity by this ruling – the obligation of sexual fidelity. The fact that the unfaithful person’s behaviour does not comply with the requirement of a comprehensive relationship of trust “does not require any further explanation”, according to the Supreme Court.
This case shows how important the interpretative work of the courts and the Supreme Court is for grasping the meaning and intention of legal texts (which are written by humans and can prove to be imprecise) and clarifying guidelines. While “fidelity” according to the Marriage Act is of course not only to be understood as sexual fidelity, but also as loyalty towards the partner in all matters of common life, the “comprehensive relationship of trust” does not only mean loyalty in other areas, but of course also sexual fidelity towards the respective better half.
The Supreme Court has thus clearly stated: sexual intercourse with third parties is a “no-go” in marriages as well as in registered partnerships and does not have to be tolerated by the offended partner. The tangible legal as well as the emotional consequences of infidelity can be far-reaching. So, before you commit yourself “forever” – in whatever legal form – it is worth having a thorough discussion of the rights and obligations that go with it. We are happy to advise you.