Divorce: what happens to the debts and the loans undertaken during the marriage ?
Although divorced, each ex-spouse is required to settle all or part of the debts of the couple or their ex-spouse. Concretely, what is the fate of debts and credits contracted during the marriage ?
The different categories of debts
The course of the debts is fixed during the settlement of the matrimonial regime , depending on their nature:
- If it’s a "household debt" (for the maintenance of the household or the bringing up of the children): the spouses contribute in proportion of their income. In the event of a non-payment, the claimant may act against any of the spouses, for the entire amount (except for the excessive expenses).
- If the debt is undertaken by the two spouses: each one must pay his share (most often half). In the event of a non-payment, the claimant can act against any of the spouses, for the entire amount, if the debt is integral.
- If it is a debt undertaken by one spouse: everything depends on the couple's matrimonial property regime. Under the separation regime, only the debtor spouse shall be liable. In the event of a non-payment, the claimant can take action against the latter. Under the community regime, each of the spouses must contribute and pay the debt for one half, unless the debt was contracted in the personal interest of the debtor spouse or in the interest of his own property. In the event of a non-payment, the claimant can act against his debtor for the entire amount of the debt and against the spouse of his debtor for half of it.
The plight of loans
Both the spouses are required to repay all of the loans they have undertaken jointly (consumer credit, mortgage , etc.). However, while liquidating their matrimonial property regime, they can ask the bank for their "uncoupling". If the bank accepts, one of the spouses is released from his/her obligation to repay the loan. Only the spouse (the one who preserves the property as a home loan for example) remains bound by the contract.
When the loans have been undertaken separately, the spouse who undertakes shall remain the debtor of the loan, after the divorce. It should be reminded, if the purpose of the loan was to finance a household debt, the spouses are jointly liable for this. In which case, the spouse, even a non-contracting party, is obliged to repay the loan.