Linking financial interests at the end of a marriage, a PACS or cohabitation is a common practice. However, managing banking agreements becomes complicated after a divorce or separation. To no longer be dependent on the debts of the other, a couple must imperatively proceed to a separation. Explanations.
In accordance with the provisions of the Civil Code, the spouses are jointly and severally liable for all household debts. This includes ongoing costs for health, taxes and recreation. Solidarity also applies in the context of everyday life linked to the accommodation in which the spouses live:bills for water and electricity consumption, co-ownership charges, insurance and payment of rents and loans. Finally, the education and maintenance of children must also be done in a solidarity-based manner. Apart from school fees, the couple is required to pay together the costs relating to leisure and extra-curricular activities. One of the main particularities of the solidarity of the spouses is that even if it is only one spouse who decides to contract a debt to meet the needs of the family, the approval of his partner is not required.
However, the latter will remain liable for this household debt, even if he has not given his consent. If a dispute arises, it is enough for the creditor to prove that the debt is household to engage the responsibility of the two spouses and push them to repay together. This type of provision applies to the community regime. If two people unite under the separation of property regime, then in this case, only the income and property of the spouse who contracted the debt are taken into account by the lending creditor.
In the context of a mortgage, if the two spouses have signed the agreement with the bank and they are under the community regime, they must then settle this debt together. Even if the couple is divorced or separated, the bank does not take this into account in a way, because both spouses continue to be jointly responsible for the debt until the total repayment of the loan. To definitively disengage from this obligation to reimburse, it is imperative to proceed with a separation of the debt. This process must be requested from the bank and be carried out under the aegis of a notary. There are several avenues that can be explored to begin this separation. The first solution is to opt for a transfer of credit, which means that one of the two spouses takes charge of the entire loan. In exchange, the one who withdraws reimburses his share to the other. In theory, this way seems easy. In practice, however, it is relatively complex. And for good reason, in granting the loan, the bank contacted two co-borrowers, which constituted for it an additional guarantee of reimbursement.
However, if the other co-borrower withdraws, the risk of non-payment becomes higher. On the other hand, this is not a problem if the spouse has sufficient income to assume the repayment of the loan alone. Another much simpler solution is to sell the property and then use the money earned on the transaction to cover the remaining repayments of the mortgage. The procedure can be entrusted to a real estate agency or a notary. Another option:bet on the joint ownership of the property. The two ex-spouses organize the reimbursement and use of the property as they wish, for a renewable period of five years. It is also possible to have the property attributed to one of the spouses by divorce judgment. But so that the other co-borrower is no longer dependent on the debt, the lease and the enjoyment must definitively be granted to his companion.
