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Get an advance on legal costs from your spouse or life partner for a legal dispute

If you are unable to finance a necessary legal dispute yourself, your spouse or life partner may be required to provide you with an advance on legal costs, provided this is equitable.

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Detailed description

If you are unable to finance a necessary legal dispute yourself, your spouse or life partner may be required to provide you with an advance on legal costs, provided this is equitable.
A typical situation as an example: day after day the same argument between two spouses, they decide to get a divorce. Because of the children, one partner works part-time and does not have the money to go to court. The other partner, on the other hand, has a fairly good income. In such cases, family law provides for a claim to advance payment of legal costs. This follows from the duty of solidarity in marriage and is therefore ultimately part of the maintenance obligation. The regulations also apply accordingly to registered civil partnerships.
The spouse entitled to maintenance can request an advance payment for disputes between themselves, for example for a divorce, as well as for certain disputes with a third party. A lawyer will inform you of the details.
If the claim for advance payment of costs can be enforced promptly, it takes priority over support from the state treasury (legal aid).
Note: Children are also entitled to an advance on legal costs from their parents (including the parent who is responsible for their child) or their grandparents. Please consult a lawyer for details in your individual case.

 

Information

Prerequisites

  • The marriage or registered civil partnership must exist.
  • It must be a legal dispute concerning a personal matter (for example, a family matter).
  • The granting of a claim for advance payment of legal costs must be equitable, taking into account the overall financial circumstances.
  • The conflict must have its roots in the community.
    • This may include, for example, proceedings before a criminal court or an employment court, but not disputes arising from previous marriages or inheritance claims.
  • The intended legal action must not be without prospect of success.
    • The prospect of success is the most important criterion for whether you are entitled to advance payment of legal costs. The court makes a prognosis, but this does not contain any excessive requirements.
  • the intended legal action must not be malicious.
    • For example, the right to advance payment of legal costs is excluded if you are seeking maintenance even though your spouse is paying maintenance on time and appropriately.
  • the beneficiary must be in need
    • You are considered to be in need if you are unable to cover the costs of litigation yourself, or only partially. The need requirements for advance payment of legal costs are lower than those for state legal aid, but you usually have to rely on your own assets first.
  • the obligor must be capable
    • The spouse or partner who is obliged to pay is entitled to an appropriate personal allowance, which must not be jeopardized. The same applies to priority maintenance claims of minor children. The assets of the person obliged to pay usually remain untouched. Depending on how capable the person obliged to pay is, there may only be a partial claim to advance payment of legal costs. If he or she is unable to meet the claim in full, the court can also allow payment in installments.

Documents required

Your lawyer will advise you on which documents and evidence must be attached to the application for an interim injunction in each individual case.

Please note

Legal advice is not available at the district court. Please contact the persons authorized to provide legal advice. These are lawyers or notaries.
The Public Legal Advice Service (ÖRA) offers low-cost legal advice for people with low incomes.

Deadlines

No.

Procedure

  • If you find that you cannot afford the legal costs, please contact a lawyer you trust in good time to find out whether you are entitled to an advance payment or assistance with legal costs. The maintenance payments of your spouse or life partner always take priority.
  • If you want to claim a subsidy, you can do so by filing an application for an interim injunction. Your lawyer will usually take on this task.
  • Whether the advance on legal costs has to be repaid after the proceedings have been concluded depends on the individual case. It may later turn out that the advance was not justified or that the conditions for a claim no longer exist.
  • For example, as an applicant, you could be in a much better position after the divorce as a result of the property settlement than before. In that case, you would have to expect to pay back the money.
  • The fact that a case was lost is usually not enough to demand reimbursement.

Processing time

Immediately.

Fees

In the case of independent legal proceedings, court and legal fees of varying amounts are incurred depending on the value in dispute.

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Keywords: money for the trial from the spouse Financing the process through spouses

Last updated: 16.02.2025