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Joint and Several Liability After Divorce

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

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

In a divorce in Leiden, 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 from 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 you can apply for discharge at the District Court of The Hague, Leiden Location and what risks apply to you or your ex-partner. Visit the Juridisch Loket Leiden at Stationsweg 46 for free advice.

What is joint and several liability for a mortgage?

For a mortgage loan in the Leiden region, two or more persons are often 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 Leiden 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 governed by:

  • 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 Leiden: District Court of The Hague, Leiden Location.

When do you remain jointly and severally liable?

After a divorce in Leiden, 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, Leiden Location.
  • 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 no longer pay, the bank can approach your ex-partner for the full debt.
  • Damage to creditworthiness: Unpaid mortgage leads to bankruptcy or suspension of payments, visible in the BKR register.
  • Loss of the home: The bank can auction the house, even if you are no longer the owner.

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

To withdraw from the mortgage in Leiden, follow these steps:

  1. Approach the bank: Request discharge in writing from your mortgage lender. Provide proof of your financial situation and the new arrangement (e.g., transfer of the house).
  2. Notarial deed: Have a notary in Leiden draw up a deed for the transfer of ownership and mortgage amendment.
  3. Court proceedings: If the bank refuses, initiate proceedings at the District Court of The Hague, Leiden Location. Prove that you no longer face risk.
  4. Free assistance: Visit the Juridisch Loket Leiden, Stationsweg 46 for initial advice on your divorce and mortgage.

Conditions for discharge

  • Ex-partner must be able to carry the mortgage alone (bank's income test).
  • No arrears in payments.
  • Consent of the mortgage lender or court judgment.

Tip for Leiden: Schedule an appointment at the District Court of The Hague, Leiden Location via their website or call the Juridisch Loket for guidance.

Practical tips and local assistance

  • Consult Juridisch Loket Leiden (Stationsweg 46) for a free intake.
  • Consider mediation via divorce mediators in Leiden to reach an agreement.
  • Check BKR registration after discharge.

Frequently