Who is responsible for the mortgage in case of divorce?
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The contribution to the «burdens of marriage»
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After separation or divorce, the obligation is imposed on the former spouses to regulate, in the regulating agreement, the contribution to the burdens of marriage and alimony, as well as their basis for updating and guarantees if applicable (article 90 d) CC).
Now, what should we understand by marriage burdens. The content of this concept is very broad and has been subject to various interpretations by case law, although it could be understood as those expensesrelated to the support of the family, the feeding and education of the children, the ordinary administration of the private property of either spouse, or the acquisition, possession and enjoyment of the common property.
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Where does the mortgage fit in?
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Where does the mortgage fit in?
Where does the mortgage fit in?
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However, the question arises as to whether or not the payment of the mortgage is a burden of the marriage. In accordance with this approach, the Supreme Court established doctrine in this regard by stating that it is necessary to distinguish between what is considered a burden of marriage, according to Arts. 90 d) and 91 CC, and the obligation of the installments corresponding to the mortgage.
The obligation of the installments corresponding to the mortgage.
Thus, the High Court points out that the payment of the mortgage loan destined to the acquisition of the family home is not a family burden, since it corresponds to the community of property and is linked to the acquisition of the ownership of the property (STS 188/2011, of March 28).
The Supreme Court thus considered that the payment of the mortgage is not included within the concept of «burdens of marriage», and that the payment of the mortgage loan installments cannot be imposed in an unequal proportion for each of the spouses, since it would imply an alteration of the joint and several nature with which each of the borrowers (spouses) obligated themselves in the mortgage loan against the bank. The obligation of payment established in the constitutive title (the mortgage loan), cannot therefore be modified.
The same way it was pronounced years before in the STS 991/2008, of November 5, in which it is provided that the mortgage that encumbers the apartment that constitutes the family home should not be considered as a burden of marriage, in the sense that this expression is recognized in Art. 90 d) CC, because it is a debt of the community of property and therefore, included in Art. 1362, 2ª CC.
How is the mortgage paid after the divorce while the community of property subsists?
If the mortgage was signed by the spouses in community of property, it will generally be solidarily, and as long as such partnership subsists the mortgage must be paid in half by the owners of the apartment it encumbers, being a debt of the same.
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In application of articles 1362. 2 CC and 1347.3 CC, the property acquired and financed with the mortgage will have the nature of community property, and therefore the payment of the mortgage, when both spouses are debtors, will correspond to both spouses by halves (STS 559/2016, of September 21), regardless of what has been established in the regulatory agreement regarding the alimony of the common children.
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