Joint and Several Liability in Mortgage and Divorce: Discharge from Joint Suretyship and Practical Consequences for the Ex-Partner
In a divorce in The Hague, joint and several liability for the mortgage can lead to serious financial risks. Even after the divorce, you remain responsible for the full loan as a joint surety. The bank can pursue you if your ex-partner does not pay. This article discusses what this entails, how to obtain discharge from the joint suretyship, and the impact on your ex-partner. Contact District Court of The Hague, Prins Clauslaan 60 or Legal Aid Office The Hague, Lutherse Burgwal 10 for local advice.
Meaning of Joint and Several Liability in Mortgage
Mortgages can be taken out individually or jointly. For partners, it is usually joint, making both joint sureties. The bank may collect the entire debt from one party without first pursuing the other. After divorce, this continues, leading to high pressure if your ex misses payments.
Joint and several liability means you are 100% responsible, regardless of the actual payer. This is risky in case of your ex-partner's income loss post-divorce.
Legal Basis: Discharge from Joint Suretyship
Discharge is possible under Article 7:960 of the Dutch Civil Code. The suretyship ends upon:
- Reasonable grounds, such as divorce and changed financial circumstances.
- Bank consent for termination.
- No reasonable reason for the bank to maintain the surety, e.g., if the ex-partner loses solvency.
Article 7:961 of the Dutch Civil Code provides additional protection: termination if the debtor (ex-partner) does not pay and security is lacking, such as in case of unemployment or income drop.
Practical Examples in The Hague Context
After divorce, the bank can pursue you for the full mortgage. Prevent this with discharge:
- Agreement with bank: take over the mortgage or have the ex pay fully.
- New mortgage in your own name; old suretyship lapses.
- Lawsuit at the District Court of The Hague if the bank refuses, e.g., in case of ex-partner's default.
Example 1: Takeover via Agreement
Mortgage €320,000 joint. Post-divorce, ex misses payments. You negotiate with the bank for takeover: you become the sole debtor, ex discharged.
Example 2: Property Transfer with New Mortgage
Ex remains in the home but cannot pay. Take out a new mortgage; old suretyship ends upon sale/transfer. Ex must cooperate.
Example 3: Procedure at District Court of The Hague
Bank refuses discharge despite ex-default. Initiate court proceedings at District Court of The Hague, Prins Clauslaan 60. Prove ex's financial inability for success. Consult Legal Aid Office The Hague, Lutherse Burgwal 10 for free intake.
Consequences for Ex-Partner and Tips
Discharge protects you, but the ex may remain liable elsewhere. Allocate risks in the divorce settlement agreement. Seek immediate help in The Hague to prevent fines and foreclosure sales.