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Joint and Several Liability in Mortgage and Divorce in Utrecht: Discharge Procedure and Risks

In Utrecht, upon divorce, the ex-partner often remains jointly and severally liable for the mortgage. Learn how to apply for discharge at the District Court of Midden-Nederland and what risks there are for your ex-partner.

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Joint and Several Liability in Mortgage and Divorce in Utrecht

In a mortgage in Utrecht, partners are often jointly and severally liable, as in the case of joint home purchase. After divorce, this usually continues, unless discharge is granted via the District Court of Midden-Nederland. This article discusses joint and several liability, the discharge procedure, and risks for your ex-partner.

What does joint and several liability mean in a mortgage?

Joint and several liability means that all borrowers are equally responsible for the entire mortgage debt. The bank can approach any one individually. After divorce in Utrecht, this persists until discharge is approved.

Example: You have a mortgage of €350,000 in Utrecht. After divorce, your ex gets the house, but if he/she does not pay, the bank can approach you for the full amount.

Legal basis

Based on the Civil Code (BW):

  • Art. 3:266 BW: Joint and several debt allocation.
  • Art. 3:272 BW: Discharge option.
  • Art. 3:273 BW: Exceptions to discharge.
The Wft requires banks to provide transparency about risks upon mortgage conclusion.

Discharge Procedure in Utrecht

To obtain discharge from joint and several liability, you must submit a written request to the bank. Follow these steps:

  1. Submit request: Letter to the bank requesting discharge, stating your wish to no longer be liable.
  2. Bank consent: The bank may refuse if the ex-partner is not financially solvent or cannot arrange refinancing.
  3. Ex-partner agreement: Ensure proof that the ex can carry the mortgage alone; notary prepares a deed of discharge.
  4. Notarial deed and Land Registry: Upon agreement, discharge is notarially recorded and registered with the Land Registry.

When does the bank refuse discharge?

Discharge is often refused if:

  • Ex-partner is financially inadequate for solo repayment.
  • Mortgage is still running and no replacement loan is possible.
  • Bank has insufficient security on the property value.
In Utrecht, you can litigate at the District Court of Midden-Nederland, Vrouwe Justitiaplein 1 if the bank refuses. The Juridisch Loket Utrecht, Catharijnesingel 55 offers free advice.

Risks for the Ex-Partner in Utrecht

Even if you obtain discharge, your ex remains jointly and severally liable. Risks:

  • Bank demands payment upon default, with BKR registration and forced sale.
  • Negative impact on future loans.
  • No automatic discharge without deed.
Consult a Utrecht notary for local mortgage advice.

Help in Utrecht

  • District Court of Midden-Nederland: Vrouwe Justitiaplein 1, Utrecht – for court proceedings.
  • Juridisch Loket Utrecht: Catharijnesingel 55 – free first-line legal advice.