Sebastian is an Austrian citizen and has lived and worked abroad for a while, also in China. There, he met Laura, a citizen of the United Kingdom. The two fell in love and moved in together while still in China. After a few years together, both had to return to Europe for professional reasons, Sebastian to Austria and Laura to England.
After careful consideration, the two decided to continue their life together in Austria. As Laura only decided to move to Austria after Brexit, she is confronted with the difficult situation that she is now considered a third-country national and that means obtaining a residence permit in Austria is associated with considerable hurdles for her.
It is clear to both of them that the easiest way for Laura to obtain a residence title in Austria would be to marry Sebastian. After that, Laura, who can fulfill the general requirements for obtaining a residence title in Austria without difficulty, could obtain a residence title as a “family member”. During her research, however, Laura comes across the information that not only spouses but also registered partners are considered family members.
Since Sebastian and Laura are not quite sure yet whether they should actually take the big step and marry each other, the idea of entering into a registered partnership, behind which they assume a kind of “marriage light”, sounds very tempting at first. But what are the legal consequences of a registered partnership and is it really just a “marriage light”?
Since the introduction of civil marriage in Austria, this legal institution was only permissible for the establishment of a legally clearly regulated cohabitation between a man and a woman. Homosexual couples did not have the possibility of establishing a civil union, which meant considerable discrimination against this population group. In 2010, after a long period of hesitation, the Austrian legislator created the Registered Partnership Act (Eingetragene Partnerschaft-Gesetz, EPG), which made it possible for persons of the same sex to enter into a form of legally recognized civil partnership largely similar to marriage. Basically, the only difference between a registered partnership and a marriage was that it was only open to homosexual couples and was not called marriage. Different-sex couples still only had the option of entering into a marriage.
However, this changed fundamentally with a ruling by the Austrian Constitutional Court on 4 December 2017. The Court found that a distinction between marriage and a registered partnership cannot be maintained without discriminating against same-sex couples. Since 1 January 2019, both marriage and registered partnership have therefore been available for same-sex or opposite-sex couples.
First of all, this means that Sebastian and Laura can in principle enter into a registered partnership, but how does this differ from a marriage?
In short, not at all. Both legal institutions are virtually identical. When the EPG was created, the provisions of marriage law that already existed at that time were adopted, for the most part word-for-word, down to the last detail. A registered partnership therefore has the same legal consequences as a marriage. This includes, among other things, the obligation to live together, participation in the acquisition of the other person, payment of maintenance, adoption law provisions, inheritance law provisions and also the provisions on dissolution or divorce. There is only a small difference insofar as the dissolution of the domestic community in a registered partnership creates an absolute ground for dissolution after 3 years, whereas in a marriage it is only after 6 years.
Today, a registered partnership is therefore nothing more than a legal relic left over after the struggle for equality of homosexual couples before the law. A registered partnership is therefore certainly not a “marriage light” for opposite-sex couples who are not sure whether they really want to take the step of marriage and merely want to give their life together an “official” touch. The registered partnership for same-sex couples is the counterpart to marriage, but since the opening of marriage for all in 2019, it is no longer relevant. Austrian law thus creates two types of cohabitation, both of which have the same legal effects. Basically, they only differ in their name and their history of origin.
With this knowledge in mind, Sebastian and Laura finally decide to enter into a marriage, not least because no advantage is apparent for them from entering into a registered partnership. With regard to the granting of a residence title that depends on the partner’s right of residence (such as residence title “family member”, Red-White-Red Card + for family members, residence card, or residence permit “family community”), it makes no difference whether the applicant is a registered partner or the husband or wife of the person entitled to reside in Austria.