Joint and Several Liability in Mortgage and Divorce: Discharge and Risks
In a divorce in Amsterdam, 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 Rechtbank Amsterdam (Parnassusweg 220) or seek advice from the Juridisch Loket Amsterdam (Vijzelstraat 77). This article discusses how joint and several liability works, discharge procedures, and risks for ex-partners.
What is joint and several liability in a mortgage?
In a mortgage loan in Amsterdam, partners are often jointly and severally liable. The bank can hold any debtor liable for the full debt, regardless of residential status. After divorce, this continues to apply, even if the property is awarded to one partner.
Example: Pieter and Lisa from Amsterdam take out a mortgage for their house in De Pijp. After the divorce, Lisa remains living there, but Pieter is still jointly and severally liable. If Lisa 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 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 in Amsterdam?
You remain jointly and severally liable if:
- You and your ex took out the mortgage together with an Amsterdam bank.
- No notification to the bank or Rechtbank Amsterdam about your departure.
- No new agreement with limited liability.
What if payments are not made?
If payments are not made, the bank can:
- Hold you directly liable for the full debt.
- Initiate collection proceedings via Rechtbank Amsterdam (e.g., payment order).
- Impose wage garnishment on your income.
- Executively sell the property, even if you are no longer the owner.
Risks for the ex-partner in Amsterdam
Without discharge, your ex risks:
- Full financial pressure in case of your default.
- Credit damage, possibly bankruptcy or BKR registration.
- Loss of home through forced auction via Rechtbank Amsterdam.
How do you apply for discharge at Rechtbank Amsterdam?
Discharge from joint and several liability requires steps:
- Inform the bank about the divorce and request discharge.
- If the bank refuses: file a petition with Rechtbank Amsterdam, Parnassusweg 220.
- Seek advice via Juridisch Loket Amsterdam, Vijzelstraat 77 (free for low incomes).
- Submit evidence: divorce judgment, income details, property valuation report.
Conditions for discharge
The court (Rechtbank Amsterdam) grants discharge if:
- The remaining partner can afford the mortgage (income test).
- The property value covers the debt (NHG or valuation).
- No objection from the bank.
Costs and processing time
Court fee: approx. €85 (2024). Procedure: 3-6 months. Start at Juridisch Loket Amsterdam for free intake.
Practical tips for Amsterdam divorce mortgage
- Consult immediately Juridisch Loket Amsterdam (Vijzelstraat 77) or mortgage advisor.
- Consider mortgage refinancing for the remaining partner.
- Arrange in the settlement agreement: who pays the mortgage until discharge.
- For NHG mortgage: often easier discharge via guarantor.
Contact points in Amsterdam
- Rechtbank Amsterdam: Parnassusweg 220, 1071 AG Amsterdam. Tel: 088-361 00 00.
- Juridisch Loket Amsterdam: Vijzelstraat 77, 1017 HJ Amsterdam. Tel: 020-533 0 533. Make appointment online.
Disclaimer: This is general information. For personal advice: Juridisch Loket Amsterdam or lawyer.