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If the couple took out a mortgage together, what happens in the event of separation? What are the solutions?
In case of MARRIAGE
According to the marriage contract , the spouses can own all the property of a fraction determined in the contract of sale. At the time of the divorce, the family court judge will decide who will return the property and who will be responsible for repaying the loan. However, this decision is not opposable to the bank and the latter can always decide to sue the spouses, considering that they are jointly and severally and without taking into account the procedure in progress.
In the event of PACS or CONCUBINATION
In the case of a PACS or cohabitation, the property must be purchased jointly. To get out of the co-ownership, you have to go to the tribunal de grande instance. He will then decide on the allocation of the property to one or the other, or may also decide to sell the property by redistributing the price according to the shares of each. This procedure is complex and the bank generally awaits the decision of the court before prosecuting one or other of the borrowers.
An AGREEMENT between the borrowers
During a separation, it is important to continue to pay the installments to the bank. Borrowers must therefore quickly find an agreement to settle the maturities. It is preferable to conclude a written agreement with the bank on the terms of repayment. One of the borrowers can thus redeem the entire share of the loan from the other borrower and the real estate will then be allocated to him after a modification of the property according to a deed signed before a notary. If we cannot reach an agreement, it is also possible to sell the property out of court to repay the entire loan. In all cases, care must be taken to continue to settle the maturities within this interval in order to avoid any legal action by the bank.
In case of DISAGREEMENT
In this case, the bank will want to recover its money and will then take legal action to pronounce the forfeiture of the term provided for contractually. This is the rule that appears in all loan contracts. The entire loan is then payable immediately. The bank can then decide to proceed with the forced and judicial sale of the property before the high court. It is always possible for borrowers to request the amicable sale of the property. In all cases, the bank recovers what is due to it. If the sale price is lower than the amount to be paid, the bank can sue the borrowers until full reimbursement by seizing a bailiff.
DAMY law firm , Nice, Real estate loans and separation, Update 2022
