Joint and Several Liability in Mortgage and Divorce: Discharge and Risks
In a divorce in Rotterdam, the ex-partner often remains jointly and severally liable for the mortgage on the family home, even if they no longer live in the house. This can lead to financial risks, such as a claim from the bank if payments are not made. Fortunately, it is possible to have this liability discharged or limited. In this article, we explain how joint and several liability works, how you can apply for discharge at the District Court Rotterdam (Wilhelminaplein 100-125) and what risks apply to you or your ex-partner. Local assistance is available at the Juridisch Loket Rotterdam (Westblaak 180).
What is joint and several liability in a mortgage?
In a mortgage loan in Rotterdam, often two or more persons are jointly and severally liable. This means that the bank can approach all debtors for the full debt, even if one person no longer lives there. In a divorce, the ex-partner often remains jointly and severally liable, even if the property becomes the property of the other partner.
Example: Jan and Marja buy a house in Rotterdam and take out a mortgage. After the divorce, Marja remains living in the house, but Jan leaves. The bank keeps Jan jointly and severally liable for the mortgage. If Marja can no longer make the payments, the bank can also approach Jan for the full debt.
Legal basis
Joint and several liability in a mortgage is governed by:
- Book 3 Civil Code (BW), Title 3.5 (Mortgage Law): Contains the rules on mortgages and liability.
- Book 7 BW, Title 7.1 (Divorce and Property Law): Regulates the consequences of divorce for property matters, including mortgages.
- Article 3:233 BW: Addresses the possibility of discharge from joint and several liability.
When do you remain jointly and severally liable?
After a divorce in Rotterdam, you remain jointly and severally liable for the mortgage if:
- You entered into the mortgage together with your ex-partner and the bank has included both of you as debtors.
- You have not withdrawn from the mortgage agreement or informed the bank of your departure.
- The bank has not signed a new agreement limiting or releasing your liability.
What happens if you can no longer pay?
If your ex-partner can no longer pay the mortgage, the bank can:
- Directly approach you for the full debt, even if you no longer live in the house.
- Initiate a collection procedure, such as a payment order or enforcement order via District Court Rotterdam.
- Garnish your income to recover the debt.
- Seize and sell the property to cover the debt, even if you are no longer the owner.
Risks for your ex-partner
If you do not withdraw from the mortgage, your ex-partner faces risks such as:
- Financial burdens: If you no longer pay, the bank can approach your ex-partner for the full debt.
- Damage to creditworthiness: Unpaid mortgage can lead to bankruptcy or suspension of payments.
- Loss of the property: The bank can sell the property in Rotterdam.
How can you apply for discharge from joint and several liability in Rotterdam?
To withdraw from the mortgage, follow these steps:
- Approach the bank: Request discharge from the bank in writing. The ex-partner often needs to apply for a new mortgage in their own name.
- Involve a notary: A notarial deed is required for mortgage changes.
- District Court Rotterdam: If the bank refuses, apply via proceedings at District Court Rotterdam (Wilhelminaplein 100-125) for discharge on the basis of art. 3:233 BW.
- Seek help: Start at Juridisch Loket Rotterdam (Westblaak 180) for free legal advice and referral.
Practical tips for Rotterdam
- Check your mortgage conditions and contact your bank.
- In divorce: Include this in the divorce settlement agreement.
- Local specialists: Find lawyers in Rotterdam specialized in family law and mortgage law.
Risks and protection
Even after discharge, risks remain if the ex-partner does not pay.