Joint and Several Liability in Mortgage and Divorce: Discharge and Risks for the Ex-Partner
In a divorce in The Hague, the ex-partner often remains jointly and severally liable for the mortgage on the former family home, even if they no longer live in the property. This entails financial risks, such as a claim by the bank in case of payment arrears. Fortunately, you can apply for discharge or limit the liability. In this article for The Hague, we explain how joint and several liability arises, how to arrange discharge at the Rechtbank Den Haag (Prins Clauslaan 60) and what risks there are for you or your ex-partner. Contact the Juridisch Loket Den Haag (Lutherse Burgwal 10) for free advice.
What does joint and several liability mean in a mortgage?
In a mortgage loan in The Hague, typically multiple persons are jointly and severally liable. The bank can hold any debtor liable for the entire debt, regardless of residential status. After divorce, the ex-partner remains jointly and severally liable, even if the property is only in the other person's name.
Example from The Hague: Pieter and Laura bought a house in the Schilderswijk and took out a mortgage. After the divorce, Laura stays in the house, Pieter moves to Voorburg. The bank can still hold Pieter liable for the full mortgage if Laura does not pay.
Statutory basis in the Netherlands
Joint and several liability is regulated in:
- Book 3 DCC, Title 3.5 (Mortgage Law): Rules for mortgages and liability.
- Book 7 DCC, Title 7.1: Consequences of divorce for property law, including mortgages.
- Article 3:233 DCC: Discharge from joint and several liability.
When do you remain jointly and severally liable after divorce?
You remain jointly and severally liable if:
- You and your ex jointly entered into the mortgage and both are listed as debtors.
- You have not withdrawn from the agreement or informed the bank.
- No new deed removes your liability.
Consequences in case of non-payment
If your ex misses mortgage payments, the bank can:
- Hold you immediately liable for everything.
- Initiate debt collection via payment order or enforcement order.
- Impose wage garnishment.
- Executively sell the property, even without your ownership.
Risks for the ex-partner in The Hague
Without discharge, your ex risks:
- Full financial pressure if you do not pay.
- Credit damage, possibly bankruptcy.
- Loss of home through forced auction.
How do you apply for discharge at Rechtbank Den Haag?
Discharge requires steps:
- Approach the bank: Request discharge in writing; demonstrate that the ex can carry the mortgage (income test).
- Notarial deed: If agreed, the notary amends the mortgage deed.
- Bank refusal? Proceed to Rechtbank Den Haag (Prins Clauslaan 60) for proceedings (art. 3:233 DCC).
- Include in the divorce settlement, to be homologated by the court.
Practical tips for The Hague
- Document all communication with the bank.
- Consult a mortgage advisor in The Hague.
- With children: prioritize housing security via family law.
Risks if discharge fails
Liability remains? Protect yourself with:
- Recourse action against ex-partner.
- Damage claim in case of default.
Local help in The Hague
- Rechtbank Den Haag: Prins Clauslaan 60, 2595 AH Den Haag. Tel: 070-361 0606.
- Juridisch Loket Den Haag: Lutherse Burgwal 10, 2512 HR Den Haag. Make an appointment for mortgage and divorce advice.