Divorce and home loan: How does it work?
The impact of a divorce on a mortgage depends on the property regime chosen by the couple during marriage. There are three regimes, each affecting the divorce process and house financing differently. Let's see how it works.
If you need help with buying a new property and contracting a new mortgage, count on the help of the real estate agency Casa no Minuto and the credit intermediaries of Poupança no Minuto. But, stepping back a bit, understand how to disassociate yourself from your current housing credit if you have separated.
What are the property regimes in marriage?
When moving on to a marriage, it is assumed that spouses will share assets. However, sharing will depend on the property regime they choose.
In the end, the property regime in marriage determines whether the assets of each spouse remain solely their own or become shared after marriage.
Now let's see: there are three types of marriage regimes, the regime of acquired assets, the general community regime, and the separation of property regime.
If you marry under the community of acquired property regime, the assets brought to the marriage by each spouse remain their own property, but the assets acquired after the marriage become common heritage.
Choosing the general community regime means that all assets, before and after marriage, of each spouse are considered common property of both.
Finally, opting for the regime of separation of property implies that, after marriage, the assets of each spouse remain their own, whether the assets they brought, as well as those inherited or received by donation afterwards.
What happens in case of divorce?
House in common
In the case of having a common home, if a divorce occurs, what happens will depend on the chosen property regime, where it can be considered as separate property (of one spouse) or common property.
In other words, if the house belongs only to one of the couple's members at the time of divorce, there will be no doubt: it continues to belong to the same person. But note that, if the court decides, the owner to whom the property belongs can rent it to the other spouse, according to their needs and those of the children.
But if you have opted for the regime of general community property, or acquired community property, if the house was acquired after the marriage, the property is common. In this situation, the house must be shared, either through sale and division of the value, or, if one of the spouses wants to keep the property, they must buy the part that belongs to the other.
If the property is rented, it is necessary to change the title of the lease agreement to only one of the spouses, if they decide to stay in the house.
Mortgage credit
In the case of mortgage credit, it will also depend on the property regime under which the marriage was formalized. Note that if one of the holders withdraws from the credit contract, the financing conditions are reviewed by the bank.
By regimes, this is the impact on each:
In the regime of acquired property, in case of divorce, the shares must define who will keep the house and the debt to the bank. The spouse who keeps the property must ask the bank for the exoneration of the debt by the other member. This issue is then subject to the bank's approval.
In the general community property regime, neither spouse can receive more in the distribution than if the marriage had been made effective by acquisition community. Therefore, in the distributions it must be written down who gets the property and the debt to the bank. Once again, the acceptance of the exoneration of debt by one of the members must be approved by the bank.
In these cases, if the effort rate of the borrower who stays with the debt is too high to meet the credit installments, the bank may renegotiate the loan conditions or even refuse the exit of the other contract holder.
If the couple got married under the separate property regime, this property is not considered common, therefore it does not imply division or discharge of debt when proceeding with a divorce. However, if the couple chose to apply for a housing loan together, it becomes common property and the same situation explained above applies.
If you have questions regarding the dismissal of one of the credit holders, or need to contract a new financing for the new house you are moving to, turn to the help of credit intermediaries. Note that the agents at Poupança no Minuto do not charge any costs to proceed with a process with us, and we also help you from start to finish.
A divorce already involves enough bureaucracy... Save yourself (even more) hassle, and contact Poupança no Minuto!