During a divorce, it is common for only one spouse to continue to pay the mortgage, sometimes despite a de facto separation or departure from the marital home.
This situation raises a number of questions: is it legal? Can the sums paid be recovered? How will this be taken into account when the property is divided?
From the very first difficulties, it is advisable to consult a Toulon divorce lawyer to protect your financial interests and avoid lasting consequences.
Why does only one spouse pay the mortgage?
De facto separation and financial imbalance
After separation, one of the spouses may have a higher income or retain access to accounts, leading to unilateral payment of the credit.
This situation is not legally neutral, as the credit is part of the marriage expenses until the divorce is finalized.
Leaving the marital home
When one spouse leaves the marital home, the other often continues to pay the mortgage to avoid any banking incidents, even if he or she is left to bear the financial burden alone.
Temporary agreement or sudden situation
In some cases, the spouses verbally agree that one of them will temporarily pay off the loan.
In other cases, the situation is unavoidable, in the absence of an agreement or court decision.
Is it compulsory to continue paying the mortgage?
Liability towards the bank
Vis-à-vis the bank, the spouses remain bound by the mortgage.
The bank doesn’t care about the divorce: it demands repayment in accordance with the loan contract.
Solidarity between spouses and co-borrowers
When spouses are co-borrowers, joint and several liability applies.
This means that the bank can demand full payment from one spouse, even if the other is no longer paying.
What happens in the event of non-payment?
In the event of non-payment, the risks are considerable:
- Registration in the payment incident file,
- Penalties,
- Property seizure procedures.
It is therefore often more prudent to continue paying, even if it means asking for compensation at a later date.
Can I get back the money I paid during the divorce?
Principle of inter-spousal claims
In family law, the spouse who pays the credit alone can, under certain conditions, assert an inter-spousal claim.
In other words, the sums paid can be taken into account at the time of division.
Payment of credit and division of property
During the liquidation of the matrimonial property regime, particularly in the case of indivisionthe notary can include payments made by only one spouse in the accounts between the parties.
Proof of entitlement to reimbursement
It is essential to keep :
- Bank statements,
- Loan schedules,
- Proof of payment.
Without proof, it will be very difficult to obtain compensation.
Mortgages and home occupation
I pay the mortgage and occupy the house
When the spouse paying the loan occupies the home, the question ofoccupancy indemnity arises.
Payment of the loan does not automatically replace this indemnity.
I’m paying the mortgage without living in the property
If you pay the loan without occupying the property, the situation is legally more favorable.
The judge may consider that you are financing a property from which you derive no benefit.
Impact on occupancy indemnity
The credit payment can sometimes partially offset the occupancy indemnity, but this depends on the judge’s decision and the overall context.
The role of the judge and interim measures
Temporary allocation of accommodation
As part of the provisional measures, the family court judge may decide :
- Who occupies the home,
- Who pays the credit,
- How expenses are distributed.
Distribution of expenses during the procedure
The judge can set a provisional division of the marriage expenses, including the mortgage, in order to limit imbalances.
Possible decisions by the judge
These decisions are designed to protect the spouses financially until the final judgment, particularly in contentious divorces.
Real estate credit, compensatory allowance and alimony
Inclusion in compensatory allowance
Payments made by one spouse can be included in the overall analysis of the compensatory allowancedesigned to rebalance financial situations.
Distinction from alimony
The alimonyis governed by separate rules and is not the same as credit repayment.
Long-term consequences of divorce
After the divorce, the fate of the credit will depend on :
- Sale of the property,
- Redemption of the other spouse’s share,
- Or to remain in joint ownership.
What can you do to protect yourself if you’re paying the loan alone?
Formalize the situation in writing
Even a provisional written agreement can be useful evidence in the event of a subsequent dispute.
Go to court to secure payment
Bringing the matter before a judge provides a clear legal framework and prevents the situation from turning against you.
Being accompanied by a lawyer
The support of a family law is crucial to adopting the right strategy from the outset.
Why consult our Toulon office?
Expertise in divorces involving real estate
The firm is regularly involved in divorces involving mortgages, joint ownership and valuable assets.
Defending the financial interests of spouses
Each case is treated with particular attention to the short- and long-term financial consequences.
Coordination with notaries and banks
We work closely with notaries and, if necessary, with lending institutions to secure transactions.
Knowledge of Toulon court practices
This local control enables us to anticipate decisions and adapt our strategy.
To discuss your situation and obtain personalized support, please visit our contact page.
FAQ – I’m paying the mortgage alone and I’m getting divorced
Can I stop paying the mortgage?
No, except with the bank’s consent or by court order. The risks are considerable.
Does my spouse have to reimburse me after the divorce?
Possibly, via an inter-spousal claim at the time of partition.
Can the judge force the other spouse to participate?
Yes, as part of provisional measures.
Is the credit payment included in the split?
Yes, if it is proven and properly integrated into the liquidation.
Do I have to pay even if I no longer live in the house?
Yes, with regard to the bank, but this may work in your favor during the divorce.
