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Why marriage is dissolvable but a child is for life

Article 1325 of the Austrian Civil Code allows the possibility to claim compensation for physical and emotional suffering.

It is a valid offer, as emotional distress can often seem far more cruel than any physical pain, especially if the suffering was at the hands of those who are closest - namely family.

But in one of those curious anomalies that is the legal system in practice this is not always as straightforward as it seems.

Take for example the case of one woman who told the Austrian Supreme Court she was suffering from insomnia, headaches, anxiety attacks and depression and psychosis as a result of her husband's adultery.

Experts testified that her emotional suffering and even the sudden onset of skin cancer were caused by the adulterous behaviour of her husband.

But the court threw out the case - ruling that a spouse cannot claim compensation for emotional suffering against their partner if it is caused by the adultery.

The reason is that the court views marriage as a dissolvable relationship - meaning the injured party was only entitled to claim back the expenses in exposing that affair, for example though the hiring of a detective.

However the relationship between a parent and child is not viewed by the courts as dissolvable, but rather as permanent. That means that in contrast to the marriage where it is possible to "dissolve" the suffering through divorce / separation, the parent-child relationship is permanent and therefore the suffering cannot be dissolved.

Therefore compensation for emotional suffering could be due if one parent denies the contact of the other parent to the child, without good reason.

That is now being tested in a case here in Austria in which a father suffered from a diagnosable mental illness because the other parent influenced the child negatively in encouraging them to severe ties with their father.

In the pending lawsuit the dad claimed compensation for emotional suffering because the mother denied him contact to the child. An expert opinion confirmed that the father suffered from a diagnosable mental illness because the mother blocked him from seeing his child.

The judgement will be passed soon.

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Austrian Times columnist Matthias Loinig is a legal correspondent and campaigner for more transparency and fairness in family law in Austria. One of the main areas he specialises in is the often obscure decisions by courts of custody - in particular over the tendency to favour the mother at the cost of the father. He is now a veteran campaigner with extensive experience of the justice system and works with a team of legal professionals recognised as the most experienced and skilled family law practitioners in Austria. He has worked towards resolutions for many parents and children, especially in cases where the parents have an immigration background, and is now a columnist for the Austrian Times Group.

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