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Joint and Several Liability After Divorce

In divorce cases in Delft, an ex-partner often remains jointly and severally liable for the mortgage. Discover how discharge works at the District Court of The Hague, risks, and how to protect your rights via Juridisch Loket Delft.

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Joint and Several Liability for Mortgage in Divorce: Discharge and Risks

In a divorce in the Delft region, 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 by 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 to apply for discharge at the District Court of The Hague (district), and what risks apply to you or your ex-partner. Visit the Juridisch Loket Delft for free advice.

What is joint and several liability for a mortgage?

In a mortgage loan in Delft, 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. After 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 Delft and take out a mortgage. After the divorce, Marja continues to live 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 for a mortgage is regulated in:

  • 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 Matrimonial 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.
For proceedings in Delft, this falls under the District Court of The Hague (district).

When do you remain jointly and severally liable?

After a divorce in Delft, 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  • You have not withdrawn from the mortgage agreement or informed the bank of your departure.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 debt collection procedure, such as a payment order or enforcement order via the District Court of The Hague.
  • 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 can no longer pay, the bank can approach your ex-partner for the full debt.
  • Damage to creditworthiness: If the mortgage is not paid, this can lead to bankruptcy or suspension of payments, which affects creditworthiness.
  • Loss of the home: If the bank sells the property, your ex-partner can lose the house in Delft.

How can you apply for discharge from joint and several liability?

To withdraw from the mortgage in the Delft region, follow these steps:

  • Step 1: Seek free advice from the Juridisch Loket Delft (location: Delft center). They will assist with your situation.
  • Step 2: Enter into a new mortgage agreement with the bank under which only the remaining partner is liable. The bank assesses financial capacity.
  • Step 3: Apply for discharge from joint and several liability at the District Court of The Hague (Delft district) pursuant to art. 3:233 BW, if the bank does not cooperate.
  • Step 4: Arrange this in the divorce settlement or judgment via the court.

Tip: Start immediately after the divorce. The District Court of The Hague handles cases from Delft efficiently.

What if the bank does not cooperate?

Initiate proceedings at the District Court of The Hague. They can compel the bank to discharge if you can prove that you no longer live in the property and no longer face risks. Contact Juridisch Loket Delft for assistance.

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