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Debt separation: when and for whom?

Finally, the big day has arrived: you are going to marry the love of your life and a wonderful honeymoon in the Maldives awaits you at the end of the ceremony.

However, do not dodge the difficult conversations before taking the plunge: what about debts incurred by your spouse? Who takes charge? And in the case of divorce, how does the separation work and is it possible in my case? 

What is uncoupling?

What is uncoupling?

By definition, disunity means breaking bonds of solidarity between people. Applied to the banking sector, the term “unbundling” is associated with the separation of debts, which is the term used by Belgian law, as long as the term has a tendency to be rather used in French law.

Decoupling depends on the type of debt

Decoupling depends on the type of debt

In reality, everything depends on your matrimonial regime and the date on which the loans in question were contracted. Your rights and obligations as well as those of your spouses under a credit depend entirely on these two elements.

There are two types of debt here: common debt and private debt. Most people are married under the default legal scheme, which corresponds to the community legal scheme. The latter separates the heritage into three parts: the patrimony of one of the spouses, the patrimony of the other spouse and finally the common heritage. Note that this separation also applies to persons declared to have de facto or de facto cohabitants.

Common debts

The two spouses are here responsible for the expenses and debts concluded during the marriage or during the duration of the cohabitation, the debt is so-called common. The latter is the responsibility of both parties, whether it is a credit agreement jointly or not. The common heritage thus includes not only the debts that the two spouses have contracted together, but also the credits that are concluded by one or the other separately but in the interest of the family and the household. If necessary, the creditor may turn against any of the spouses for reimbursement and no separation as such is possible.

Private debts

In parallel to this, we find the so-called personal debts, which only belong to one of the spouses. They can be in the following forms:

  • Debts formed before marriage
  • Debts resulting from an inheritance or gift to one of the spouses
  • Debts contracted by one of the spouses for his own needs
  • Debts resulting from a criminal conviction

These debts can be linked in principle only to the person who created them and are therefore not part of the common heritage. In the event of a divorce, no separation is involved since the holder of the debt is indeed the spouse who has contracted it. For all other types of receivables generated for the purpose of providing for the household, it is the responsibility of both parties to repay them, since under the legal regime of community, the separation of debts does not apply.

What are the exceptions?

cash

When you have abandoned the legal matrimonial regime for a marriage contract, cases may differ and a separation or separation of debts may be possible. If you are married under the separation of property regime, each spouse remains the owner of their own debts and property. Creditors can only appeal against the spouse to whom they are contractually bound. It is only in the event that a credit has been signed by both spouses that they are jointly and severally liable. Small flat: under this matrimonial scheme, financial institutions will tend to require the suretyship of the spouse in order to be able to grant the credit, which is then linked to the debt in the same way as the person responsible for the debt in question.

On the other hand, know that under the legal regime of community, and in the case where one of the spouses would have secured a loan without the explicit authorization of his spouse, the debt remains at his expense and the dissociation applies in fact.

 

Jamie Coles

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