Concerned about the steadily increasing number of divorce cases and, consequently, the number of children affected by the divorce of their parents in the late 1990s, the joint model project of the Federal Ministry of Justice and the Ministry of Family Affairs „Familiy Counselling at Court – Family Mediation – Child Guidance“ (1997) should help to strike new paths in reducing the negative impact on children.
Whenever discussion considers the stability of marriages and thus a child’s home environment, attention is normally directed to levels of divorce and relative divortiality. This statistic is based on the total divorce rate (TDR), which specifies how many of the marriages currently taking place will end in divorce if there is no change in the current divorce rates specific to the duration of the marriage. This hypothetical TDR value is currently just above 40%. Where children’s rights are concerned, it is however only the number of children who are affected by divorce that is of interest here, in addition to the number of minors and above all, children under the age of 14 years whose parents have divorced. It is important to note that almost 40% of couples whose marriage ends in divorce have no children. The probability that the parents of children born in wedlock will divorce before they attain the age of majority is 20% (this is what is known as the total parental divorce rate of children born in wedlock).
Totalling some 10,000 divorces at the beginning of the 1970s, the number of marriages taking place per year in Austria that ended in divorce had doubled by the turn of the millennium. The highest absolute figure to date (20,582) was attained in 2001. During these three decades the total divorce rate – i.e. the probability of the marriages taking place in the relevant year ending in divorce with no change in the divorce pattern – rose by a factor of 2.6, namely from around 18% to 46%. The number of divorces then remained high; at 20,516 in 2007, it was to date the second highest in Austria, and the total divorce rate of 49.47% was the highest.
One reason for this was a special situation which came about involving bi-national marriages (an increase in „marriages of convenience“ which peaked in 2004; from 2006 introduction of legal provisions relating to foreign nationals; rate of divorce culminating in 2007). From 2010 divorce then returned to „normal“ levels, with rates of 43% being reported (2012: 17,006 divorces, i.e. 42.51%). In 2013 the number of divorces fell by 1,048 to 15,958 or 6.2%. This fall is no doubt due to the Austrian law KindNamRÄG (law amending child custody and right to a name, Fed. Gaz. I No. 15/2013), which was introduced on 1 February 2013. The change specifically related to Section 95 Subsection 1a Non-Contentious Proceedings Act, which states <Portal Separation and divorce>:
„Prior to the conclusion or submission of an arrangement governing the consequences of the divorce, the parties must present documentation confirming that they have sought advice from an appropriate quarter about the specific needs of their underage children ensuing from the divorce.“
The fluctuation in the divorce rate seen in 2013 was concentrated on the months of February/March in which 17% fewer marriages ended in divorce than in the previous year. In 2014 the number of divorces in these two months was then 15% higher. In 2013 the total divorce rate was only 40.14% before rising again to 42.14% in 2014 (16,647 divorces, i.e. +4.3%). It is not possible to say whether the obligation to seek advice to ensure children’s welfare led to a backlog of divorces in 2013 and concurrently, a fall in the divorce level. After rising again in 2014, the rate declined slightly by 1.8% to reach 16,351 in 2015 and then by 2.6% to 15,919 in 2016. The TDR fell to 41.60% and 40.45%, i.e. in 2016 it still exceeded the figure for 2013. However, from 2017 to 2019 small increases in the number of divorces (to 16,319 resp. on average +0.8% per year) were observed and in 2019 the TDR was 40.68%, thus nearly the rate of 2016.
At the beginning of the 1970s the proportion of divorces involving children was two-thirds (66.6%). At 66.1% in 2001 it had hardly dropped at all. In 2007 this figure fell to 57.5%, an all-time low, as marriages of convenience ending in divorce were almost all childless. Of the couples who divorced in 2019, 62.1% did have children – or to be more precise, children who were born within the marriage including those who were subsequently legitimated. The number of youngsters of any age affected by divorce peaked at 23,715 in 2001, likewise the number of children under 14 years involved here, who totalled 14,588 in this year. The figures for children with divorced parents have to date fallen due to the decline in the birth rate within marriage. In 2012, 10,080 children under the age of 14 years were affected by divorce. At 9,204 in 2013 this was down 8.7% before rising again to 9,741 in 2014, i.e. 5.8% more. The changes observed in the first and second year after the obligation to seek advice was introduced by KindNamRÄG 2013 were most marked in the case of the under threes (2012/13: -22.9%, 2013/14: +11.8%). This trend weakened as the age of the child increased (three to under-sixes: -11.4%, +8.1%; six to under-tens: -6.4%, +5.4%; 10 to under-14s: -3.3%, +2.7%). At 9,794 in 2015, the number of under-14s whose parents divorced remained virtually the same as the previous year before falling by 4.3% to 9,370 in 2016 – albeit not below the level of 2013 – and rose on average 2.4% per year to 10,056 from 2017 to 2019. A largely parallel trend is seen in the greater number of under-18s affected by divorce (e.g. 2012: 13,278 in 2013: 12,201, 2016: 12,218, 2019: 12,823). Whether the phenomenon of divorce involving children has changed and if so, how, can only be analysed using the relevant figures.
The rate of children affected by divorce, i.e. the total parental divorce rate of children born in wedlock, calculated up to the 18th birthday, hovered around the 20% mark for many years. It fell by 7.2% to 18.56% in 2013 before rising again by 5.5% to 19.58% in 2014. There was another extremely modest rise (+0.8%) to 19.74% in 2015, followed by a slight fall (-2.5%) to 19.24% in 2016. Once again, this rate remained above the level seen in 2013. In 2017 the exact level of 2015 was reached (19.74%). After a slight increase to 22.22% (+2.5%) in 2018 no significant changes were observed in 2019 (20.15%).
It is only with further age-specific analysis that a dampening effect emerges for marriages involving very young children. This could be due to the greater emphasis placed on ensuring the welfare of the child: The divorce rate of couples with children under the age of three who were born in wedlock fell from 2.47% (2012) to 1.89% (2013), with a similarly low level also occurring in 2019: 1.90%. This does not however apply to the divorce rate for parents with children over the age of three who were born in wedlock, which remained more or less the same. In the case of illegitimate children subsequently legitimated by their parents, who currently account for about 30% of all minors affected by divorce, the fall was more pronounced and encompassed a wider age group, namely children under six. The parental divorce rate fell here from 6.02% (2012) to 5.34% (2013) and then to 4.80% (2016).