Joint and Several Liability in Mortgage and Divorce: Discharge from Joint and Several Suretyship and Practical Consequences for the Ex-Partner
In a divorce in the Rotterdam region, joint and several liability for the mortgage can lead to serious financial risks. Even after the divorce, you remain liable as a joint and several surety for the entire loan. The bank can approach you directly if your ex-partner does not pay. This article discusses the rules, discharge options via District Court of Rotterdam (Wilhelminaplein 100-125) and consequences for Rotterdam divorce cases.
Why Joint and Several Liability is Problematic in Rotterdam Divorces
Joint mortgages for couples in Rotterdam lead to joint and several suretyship. The bank considers both ex-partners fully responsible for the entire debt, regardless of the divorce settlement agreement. In the event of default by your ex-partner – often due to unemployment in the port city – the bank demands payment directly from you. This follows from the standard mortgage terms.
Legal Basis for Discharge from Joint and Several Suretyship (arts. 7:960 and 7:961 CC)
Under Article 7:960 CC, you can demand discharge on reasonable grounds, such as divorce. The bank must agree or allow termination. Article 7:961 CC assists if your ex-partner is solvent but fails and no security remains, e.g., due to income decline in the Rotterdam market.
In Rotterdam, the District Court of Rotterdam (Wilhelminaplein 100-125) handles such cases. Start with free advice from Legal Aid Office Rotterdam (Westblaak 180) for procedural support.
Practical Steps and Rotterdam Examples
To obtain discharge:
- Agreement with bank: You take over the mortgage, indemnify the ex-partner.
- New mortgage: Solely in your name, old suretyship lapses upon transfer.
- Court proceedings: Force discharge via District Court of Rotterdam in case of unreasonable refusal.
Example 1: Takeover in Rotterdam Vinex District
You and your ex-partner have a €350,000 mortgage for a home in Rotterdam-South. After divorce, you take over via bank agreement: you become the sole debtor, ex-partner discharged.
Example 2: Ex-Partner Remains in Kralingen Home
Ex-partner continues living in Kralingen, you arrange a new mortgage. Old joint and several suretyship ends upon transfer agreement, provided the bank approves.
Example 3: Lawsuit at District Court of Rotterdam
Bank refuses discharge while ex-partner is unemployed (port dismissal). File summons via Legal Aid Office Rotterdam at District Court of Rotterdam. The judge may lift the suretyship due to lack of security (art. 7:961 CC).
Consequences for Your Ex-Partner and Tips for Rotterdam
Discharge protects you, but the ex-partner must then pay solo – possibly via mortgage adjustment. Consult Legal Aid Office Rotterdam (Westblaak 180) for settlement agreement adjustment. In case of foreclosure, both risk loss; prevent via mediation.
Action Plan: 1) Document the divorce. 2) Request discharge from bank in writing. 3) If refused: Legal Aid Office and District Court of Rotterdam.