In the division of a home purchased through a mortgage loan, three issues must be clarified separately: who owns the property, how the financial burden is shared between the former spouses, and who remains obligated to the bank. The division decision does not automatically modify the credit agreement or the mortgage registered on the property.

The property and the loan under the legal community system

An asset acquired during the legal community is, as a rule, common property. The Civil Code includes among the common debts obligations related to the acquisition of common assets and those contracted together. However, the personal liability of each spouse towards the bank is first checked in the contract: it matters whether both parties signed as debtors, whether one is a guarantor, and what obligations and guarantees were assumed. Marriage alone does not automatically turn any spouse into a contractual debtor.

After the divorce, the former spouses remain co-owners in the joint property until their liquidation and division. When determining the shares, the contribution to the acquisition of the property and the fulfillment of the common obligations are taken into account; the law presumes equal contributions until proven otherwise.

What the division can establish and what remains in the contract

The court or the agreement on division may assign the property to one of the former spouses and may regularize the debt and the payments made between them. However, this internal solution does not release the other debtor from the bank. For the change of debtors or the takeover of the debt with the release of the original debtor, the legal operation accepted by the creditor is required, according to the Civil Code and the contract. In the absence of a contractual modification, the bank retains its rights against the persons who signed as debtors.

The mortgage does not disappear just because the property is assigned to one of the spouses. As long as the secured debt is not extinguished or the guarantee is not cancelled under the law, the mortgage creditor may exercise their rights over the property; the Civil Code recognizes creditors with a security over common property the right to pursue their claims even after the division.

Solutions to discuss with the bank

  • The taking over of the loan by the spouse who owns the house, with the agreement of the bank and the express release of the other party, if the bank agrees.
  • Refinancing in the name of the person who keeps the property, after verifying eligibility and extinguishing the existing loan.
  • The sale of the property, with the agreements required by the contract and the use of the price to pay the balance; the remaining difference is divided according to the established quotas.
  • The assignment of the housing to one of the former spouses, accompanied by a settlement and a clear understanding between them regarding the installments, without assuming that this changes the relationship with the bank.

The net value for the division of property is not determined solely by dividing the price of the home into two parts. The value of the property, the balance of the credit at the reference date, contributions to the advance and installments, the established quotas and payments made after the termination of the community are also relevant. Keep the bank statements, the credit agreement, the repayment schedule, the deeds regarding the mortgage and proof of the amounts paid by each spouse.

If one of the former spouses pays the installments after the division of the property that, in the relationships between them, the other spouse was supposed to bear, there may be a claim for regularization. This is analyzed separately from the obligation to the bank and depends on the decision or agreement on the division of the property, the contract and the evidence of payments.

Official sources: Civil Code, Articles 351–357, 678 and the rules regarding the assumption of debt.