Joint and Several Liability in Mortgage and Divorce in Utrecht: Discharge from Joint Suretyship
In a divorce in Utrecht, joint and several liability for the mortgage can cause major problems. Even after the divorce, you remain liable as a joint surety for the full loan. The bank can approach you directly if your ex-partner does not pay. This article discusses what this entails, how to obtain discharge from the joint suretyship, and the practical impact on you and your ex-partner in Utrecht.
What does joint and several liability for a mortgage mean?
Mortgages can be singular or joint. For partners, a joint mortgage is common, where both stand as joint sureties. The bank views you and your ex as equally responsible for the entire debt. In case of default by your ex-partner, the bank may immediately demand the full amount from you.
Joint and several liability means that the bank does not have to pursue your ex first. You bear the full burden, which weighs even heavier in the event of income reduction after divorce.
Statutory rules for discharge from joint suretyship
Discharge from joint suretyship falls under Article 7:960 DCC. This article provides for discharge in cases of:
- Reasonable grounds, such as divorce in Utrecht.
- Bank consent for termination.
- No reasonable interest of the bank in continuation, e.g., if the ex-partner is insolvent.
Article 7:961 DCC assists if your ex-partner cannot bear the debt and the bank has no solid security, such as in cases of unemployment or loss of income.
Practical steps and examples in Utrecht
After divorce in Utrecht with a joint mortgage? Prevent liability by applying for discharge. Options:
- Bank agreement: You take over the mortgage.
- New mortgage: Solely in your name, the old suretyship lapses.
- Lawsuit: At the District Court of Midden-Nederland, Vrouwe Justitiaplein 1 in Utrecht.
Example 1: Takeover via agreement
Mortgage €300,000 with ex-partner. After divorce, you take it over via bank agreement. You become the sole debtor; ex is removed from suretyship.
Example 2: New mortgage in Utrecht
Ex remains in the property but does not pay. You take out a new mortgage; the old suretyship lapses upon sale/transfer with ex's agreement.
Example 3: Procedure at District Court of Midden-Nederland
Bank refuses discharge? Initiate a court proceeding at the District Court of Midden-Nederland, Vrouwe Justitiaplein 1, Utrecht. Prove ex-partner's inability to pay for success. Juridisch Loket Utrecht assists with preparation.
Consequences for ex-partner and tips Utrecht
Discharge protects you, but the ex-partner may remain liable. Allocate risks in the divorce settlement agreement. Consult a notary or lawyer in Utrecht for mortgage transfer. Visit Juridisch Loket for low-threshold assistance.
Note: This is not legal advice. Contact professionals in Utrecht.