Divorce is always stressful, but if the family assets include a mortgaged apartment, the situation becomes more complicated. Many spouses mistakenly believe that when dividing property, the debt is automatically split in half or disappears for the one who did not sign the agreement. However, Ukrainian legislation and judicial practice paint a different picture.
Experts emphasize: the presence of a mortgage encumbrance is not an obstacle to the division of housing. Anna Salienko, a lawyer at the law firm "Prykhodko & Partners," explained in a comment to RBC-Ukraine how the mechanisms for dividing property and debt obligations actually work.
The mortgage "follows" the property
According to Article 60 of the Family Code of Ukraine, housing purchased during marriage is considered joint common property, regardless of whose name it is registered under. Upon divorce, such real estate is divided equally (Art. 70 of the Family Code).
"A mortgage does not hinder the division," stated Anna Salienko. She explained that according to the Law "On Mortgage," the encumbrance does not terminate upon a change of ownership. It "follows" the property. This means that if the court awards one of the spouses a share in the mortgaged apartment, they automatically become a co-mortgagor. The bank's rights are not violated, and the credit obligation continues to operate in its original volume.
Who pays the debt: the myth of joint and several liability
One of the most dangerous mistakes during divorce is confusing the concepts of property division and debt division. The lawyer warns: the mere fact of being married at the time the loan was obtained does not make the second spouse a joint debtor to the bank if they did not sign the loan agreement.
"The debt is considered joint only when it is proven that the loan was taken and used in the interests of the family," emphasized Salienko, citing Article 65 of the Family Code.
As an example, she cited the ruling of the Grand Chamber of the Supreme Court dated June 30, 2020. The court proceeds from the presumption of common interests of the spouses, but this concerns the internal distribution of responsibility between them, not the automatic shifting of half the debt onto the shoulders of the one who is not the borrower according to the documents.
Practical resolution of disputes
In practice, the situation often unfolds such that one spouse unilaterally pays off the joint debt. In this case, they have the right to a recourse claim against their former partner — that is, compensation for their share of the paid funds (usually half).
Summing up, the lawyer noted the key point: the court has the authority to divide property, but cannot terminate the mortgage or change the debtor in the loan agreement without the bank's consent. This means that even after divorce and a court ruling, the bank will demand fulfillment of obligations in accordance with the original agreement, and the spouses will have to resolve issues of mutual settlements between themselves.
Important: this material is for informational purposes only and does not constitute legal advice. If legal assistance or interpretation of legislation is required, it is recommended to consult a qualified lawyer.
