Mortgage pagkatapos ng diborsyo: magkasanib na pananagutan at paglaya mula sa utang

After a divorce, both of you remain liable for the full mortgage until the bank formally releases one of you. Moving out or agreeing in your divorce covenant that your ex will pay does not change that; only a release from joint and several liability granted by the lender ends your exposure.

This article covers the home and the loan: how liability works, how you obtain a release, what happens if the bank refuses and how the property is transferred at the notary. The wider settlement of assets is covered in our article on the limitadong komunidad ng ari-arian, and who may stay in the house is dealt with in diborsyo at ang tahanan ng mag-asawa.

Who owns the house and who owes the bank?

Ownership and liability are two separate questions. Ownership is recorded in the deed of transfer at the Land Registry (Kadaster); liability follows from the loan agreement and the mortgage deed.

For spouses and registered partners, ownership depends on the property regime. If you married or registered on or after 1 January 2018, you are in a limited community of property: a home bought during the marriage is jointly owned in equal shares, while a home one of you owned before usually stays private. Marriages before that date mostly fall under the older general community of property. A marriage settlement (huwelijkse voorwaarden) or a marriage concluded abroad can change this; see our article on ari-arian sa loob at pagkatapos ng kasal.

Unmarried partners who bought together are co-owners under Book 3 of the Dutch Civil Code (BW), in the shares stated in the deed of transfer. Those shares do not automatically follow who paid what. If one of you paid more than the deed reflects, that claim needs another basis, such as a cohabitation agreement or a loan agreement.

What does joint and several liability mean for you?

If you took out the mortgage together, each of you owes the bank the whole debt, not half. This is joint and several liability (hoofdelijke aansprakelijkheid) under Book 6 BW, and the bank may choose to claim everything from one of you.

Between the two of you, the internal split is often fifty-fifty. If you pay more than your share, you have a right of recourse against your ex, but that claim is only worth as much as your ex can actually pay.

This has three practical consequences:

• Payment arrears are registered with the Dutch credit register (BKR) for both borrowers, whoever caused them.
• The joint mortgage counts as a debt when you apply for a new loan, so a partner who moved out often cannot buy a home until the release is granted.
• An agreement between you that one partner bears the mortgage only binds the two of you. The bank is not a party to your divorce covenant.

How do you get released from the mortgage?

A release from joint and several liability (ontslag uit de hoofdelijke aansprakelijkheid) is a decision of the lender alone. No court can order a bank to release a borrower, and a divorce decision does not do so automatically.

The bank assesses whether the remaining borrower can carry the whole loan alone, much like a new mortgage application: income, other obligations, the value of the home and the national lending standards. A divorce often reduces borrowing capacity on both sides, because two incomes become one and partner maintenance counts as a debt for the payer. Settle maintenance and the mortgage in the same negotiation, not one after the other.

Banks usually ask for a signed divorce covenant or separation agreement, a recent valuation report (taxatierapport), proof of income and the current loan statement. If the takeover is financed by increasing the mortgage, the increase is treated as new borrowing. Since 2013, new borrowing must be repaid on an annuity or linear basis to qualify for mortgage interest relief from the Belastingdienst; ask a tax adviser how this applies to you.

If the bank refuses, your options are to sell the house, add income or security that satisfies the lender, refinance the whole loan with another lender in one name, or stay co-liable for a fixed period under clear written arrangements. Leaving things unresolved is not an option, because the liability simply continues.

Which route fits your situation: takeover, sale or staying co-owners?

Almost every case ends in one of three ways. Each route has its own legal steps at the bank and the notary.

• Takeover. One partner keeps the home and buys out the other. The bank releases the departing partner and a civil-law notary executes a deed of division, which is registered with the Kadaster. This is the cleanest outcome, but it depends on affordability.
• Pagbebenta. The house is sold, the mortgage is repaid from the proceeds and the remainder is divided. Both owners must cooperate at every step, from instructing the estate agent to signing the deed of transfer.
• Staying co-owners for a period. Sometimes unavoidable, for example until the children finish a school year. Liability continues in full, so record in writing the end date, what triggers a sale and who pays which costs until then.

How do you calculate the surplus value or residual debt?

Deduct the outstanding mortgage from the value of the home. A positive result is the surplus value (overwaarde); a negative result is a residual debt (restschuld). Both are shared in the ownership proportions, normally half each, unless you agree otherwise.

The WOZ value from the municipality gives a rough indication, but banks and notaries work from a recent valuation report. If you cannot agree on a valuer, appoint one jointly. That is cheaper than litigating about the value.

Two adjustments are common. If one of you paid part of the purchase price from private funds, an inheritance or a gift, there may be a reimbursement claim against the community. And if one of you has paid the full mortgage while both are liable, a settlement for that period may be due, set off against any compensation for exclusive use of the home. Record both points in the covenant.

Who may live in the home while matters are settled?

Ownership does not decide who lives in the home during the divorce. While the proceedings run, either spouse can ask the court for provisional measures (voorlopige voorzieningen), including exclusive use of the marital home; see our article on mga pansamantalang hakbang sa mga paglilitis sa diborsyo.

After the divorce, Article 1:165 BW allows the court, at a spouse’s request, to grant that spouse continued use of the home for six months after the divorce is registered, against a reasonable fee. This applies even if the other spouse is the sole owner. It is a breathing space, not a permanent right, and it does not change who owes the bank.

Unmarried partners have no such statutory right. Use follows from ownership, the cohabitation agreement or what you agree. A co-owner who is kept out can ask the court in interim relief proceedings (kort geding) for arrangements on use, and the occupying co-owner may owe a usage fee.

What if your ex-partner will not cooperate?

No one has to stay in a co-ownership. Under Article 3:178 BW every co-owner can demand division at any time, and if you cannot agree, the court can order how the property is divided under Article 3:185 BW, including a sale and division of the proceeds.

These proceedings take months and cost money, so try mediation or negotiation through lawyers first. Where a point cannot wait, such as instructing an estate agent, access for viewings or paying the monthly instalment, interim relief proceedings can give a decision within weeks.

Whatever happens, keep paying the mortgage. Arrears harm both of you, weaken your case for a release and can lead the bank to force a sale of the house on its own terms.

What happens to a residual debt under the NHG?

If the loan is covered by the National Mortgage Guarantee (Nationale Hypotheek Garantie, NHG), a residual debt after a sale caused by divorce may be waived. The waiver is conditional: the sale must take place with the involvement and approval of the guarantee fund, both former partners must cooperate, and you must not have acted culpably.

The NHG cost limit and conditions change every year and are published on nhg.nl, so check the rules for your own loan. Without NHG cover, the residual debt is an ordinary joint debt that the bank can claim in full from either of you. Agree in the covenant who pays what, on which schedule and what happens if one of you defaults.

Sa anong pagkakasunod-sunod dapat mong gawin ang mga hakbang?

Sequence matters more than speed. First establish ownership, then the figures, then the agreement, and only then go to the bank and the notary.

1. Establish who owns the house, in what shares and under which property regime.
2. Obtain the current loan statement and a recent valuation report.
3. Agree on who keeps the house, the buyout amount, the division of valuation, notary and bank costs, and the date from which the occupant bears the running costs.
4. Record this in the divorce covenant (for spouses and registered partners) or a separation agreement (for cohabitants); our article on the tahanan ng mag-asawa pagkatapos ng diborsyo shows how the housing clause fits in.
5. Take the signed agreement to the lender and obtain the release in writing.
6. Instruct the notary to draw up the deed of division and, where needed, the new mortgage deed.

The departing partner is free only once the release takes effect and the deed is registered with the Kadaster. At the same time, check any term life insurance linked to the mortgage, because the policy often still names the former partner.

Ano ang dapat mong suriin bilang partner na nang-iiwan?

Your main risk is staying liable for a house you no longer live in. Check these points before you sign anything:

• Is your release from joint and several liability confirmed in writing by the bank, not just promised by your ex?
• Does the covenant set a deadline for the takeover and a forced sale if the release fails?
• Is your share of the surplus value, or of the residual debt, calculated on a recent valuation report?
• Have you claimed reimbursement for private money you put into the house?
• Are you removed as policyholder or beneficiary of linked life insurance?

Ano ang dapat mong suriin bilang partner na mananatili?

Your main risk is taking on a loan you cannot carry alone. Check these points before you commit to a takeover:

• Has a mortgage adviser confirmed that you can carry the full loan on your own income, including maintenance?
• Is the buyout amount based on a valuation report the bank will accept?
• Do you know the tax treatment of any increase of the mortgage?
• Are the costs of the valuation, the bank and the notary divided in the covenant?
• Is there a usage fee or settlement for the period you lived in the home alone?

What can we do for you with your mortgage after divorce?

Ang aming pangkat ng batas pampamilya advises spouses, registered partners and cohabitants on the housing side of a separation.

• We establish the property regime and the ownership shares of the home.
• We calculate the surplus value or residual debt and any reimbursement claims.
• We draft the housing clause of your divorce covenant or separation agreement, with deadlines and a fallback sale.
• We coordinate with the lender, the mortgage adviser and the notary on the release and the deed of division.
• We apply for provisional measures or continued use of the home under Article 1:165 BW.
• We start division proceedings or interim relief proceedings if your ex-partner refuses to cooperate.

Buod

• Both borrowers remain liable for the full mortgage until the bank grants a release; your covenant does not bind the bank.
• The bank releases a borrower only if the other can carry the loan alone.
• The surplus value or residual debt is shared in the ownership proportions, normally half each.
• If your ex will not cooperate, you can demand division in court under Articles 3:178 and 3:185 BW.
• Keep paying the mortgage throughout; arrears hurt both of you.

Mga madalas itanong