Terug naar Encyclopedie
Familierecht

Joint and Several Liability in Mortgage and Divorce: Discharge and Risks for the Ex-Partner

In divorce in Tilburg, an ex-partner often remains jointly and severally liable for the mortgage. Learn how discharge works via the District Court of Zeeland-West-Brabant, risks and steps to protect your rights.

3 min leestijd

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

In a divorce in Tilburg, the ex-partner often remains jointly and severally liable for the mortgage on the family home, even if they no longer reside there. This entails financial risks, such as a claim from the bank in case of payment arrears. Fortunately, you can apply for discharge at the District Court of Zeeland-West-Brabant, Wilhelminapark 100 or seek advice from the Legal Aid Office Tilburg, Spoorlaan 364. This article explains how joint and several liability works, how to arrange discharge and what risks there are.

What is joint and several liability in a mortgage?

In a mortgage loan in the Tilburg region, often two persons are jointly and severally liable. The bank can approach both debtors for the full debt, regardless of who resides in the property. After divorce, the ex-partner remains liable, even if the property is awarded to the other.

Example: Pieter and Laura from Tilburg buy a house with a mortgage. After the divorce, Laura continues to live there, but Pieter remains jointly and severally liable. If Laura defaults on payments, the bank can hold Pieter liable for the entire debt.

Legal basis

Joint and several liability is governed by:

  • Book 3 DCC, Title 3.5 (Mortgage Law): Rules on mortgages and liability.
  • Book 7 DCC, Title 7.1: Consequences of divorce for assets, including mortgages.
  • Article 3:233 DCC: Discharge from joint and several liability.
For proceedings in Tilburg: District Court of Zeeland-West-Brabant, Wilhelminapark 100.

When do you remain jointly and severally liable in Tilburg?

You remain liable if:

  • You both entered into the mortgage and the bank regards you as a debtor.
  • No discharge has been requested from the bank or court.
  • The mortgage deed does not exclude you.

Consequences of non-payment

If the ex does not pay, the bank can:

  • Directly hold you liable for everything.
  • Initiate collection proceedings via payment order or enforcement order.
  • Impose wage garnishment.
  • Foreclose on the property, even if you are no longer the owner.

Risks for the ex-partner

Without discharge, the ex risks:

  • Full payment in case of your default.
  • Credit damage, bankruptcy or suspension of payments.
  • Loss of home through executory sale.

How do you apply for discharge in Tilburg?

Steps for discharge from joint and several liability:

  1. Approach the bank: Request discharge in writing with proof of divorce and financial substantiation.
  2. Bank refuses? Proceed to the District Court of Zeeland-West-Brabant, Wilhelminapark 100, Tilburg for proceedings.
  3. Free advice: Visit the Legal Aid Office Tilburg, Spoorlaan 364 for assistance with the application.
  4. Notary: Amend the mortgage deed via notarial deed.

Conditions for discharge

The court grants discharge if:

  • The ex can afford the mortgage (income test).
  • No risk to the bank (e.g., via home equity).
  • The divorce settlement provides for this.

Practical tips for Tilburg

  • Record agreements in the settlement upon divorce.
  • Check mortgage conditions with your bank.
  • Consult the Legal Aid Office Tilburg directly for local assistance.

Contact points in Tilburg

  • District Court of Zeeland-West-Brabant: Wilhelminapark 100, 5041 EA Tilburg. Tel: 013-4682000.
  • Legal Aid Office Tilburg: Spoorlaan 364, 5038 CD Tilburg. Tel: 0900-8020 (loket.nl).