What happens to a joint mortgage after divorce in Poland?

A mortgage taken out jointly by spouses is one of those things many couples only start thinking about seriously when the marriage breaks down. And then the questions start: who pays the instalments now? What if the former spouse stops paying? Can you remove yourself from the loan? The answers are less intuitive than most people expect – which is precisely why it pays to understand them before it becomes urgent.

Table of contents

1. Divorce does not change the obligation to the bank
2. Joint and several liability – what does it mean in practice?
3. Can one spouse take over the mortgage?
4. What if the former spouse stops paying?
5. How to deal with the mortgage when dividing joint assets
6. Practical guidance
7. FAQ

Divorce does not change the obligation to the bank

This is the single most important principle to understand: a divorce judgment has no effect on the mortgage agreement. The bank is not a party to the divorce proceedings, and a family court judgment does not in any way alter the terms of a contract concluded with a financial institution.

A mortgage taken out jointly by spouses during the marriage is a joint and several obligation within the meaning of Article 370 of the Civil Code (Kodeks cywilny) – meaning that each spouse is liable to the bank for the full amount of the debt, not merely their “half.” This remains true after the divorce just as it was during the marriage.

This means that even if the family court – in its judgment or in an approved settlement – provides that one spouse alone will service the mortgage, this has no legal effect as far as the bank is concerned. The bank retains the right to demand payment of the full outstanding balance from either former spouse.

Joint and several liability – what does it mean in practice?

Joint and several liability (Article 370 of the Civil Code) is one of those provisions that has fundamental practical consequences in mortgage disputes after divorce. In plain terms: if one former spouse stops paying the instalments, the bank can demand payment of the full instalment from the other. Not half – the full amount.

This applies to mortgages taken out jointly by both spouses. The position is different where only one spouse took out the loan. Under Article 41 § 1 of the Family and Guardianship Code (Kodeks rodzinny i opiekuńczy), a creditor may seek satisfaction from the joint marital estate only where the other spouse consented to the obligation being incurred. Mere knowledge of the debt is not sufficient – express consent is required.

Joint marital property continues until it is terminated – that is, until the divorce judgment becomes final or until the spouses conclude a notarial property agreement (intercyza). Obligations incurred during that period fall within the scope of both spouses’ liability.

Can one spouse take over the mortgage?

Yes – but only if certain conditions are met simultaneously. Assumption of debt is governed by Article 519 of the Civil Code and is possible only with the creditor’s consent – in this case, the bank. Without the bank’s consent, no agreement between the former spouses will release either of them from liability towards the financial institution.

In practice this means that where one former spouse wishes to take sole responsibility for the mortgage, they must: submit a formal application to the bank for assumption of the debt; undergo a fresh creditworthiness assessment (as the sole obligor); and obtain the bank’s formal consent to a change in the terms of the loan agreement.

The bank is under no obligation to agree. It assesses independently whether the person assuming the debt provides sufficient guarantee of repayment. If the creditworthiness of one spouse is not adequate, the bank may refuse.

In our experience, any agreement between former spouses about who will service the mortgage should always be accompanied by a formal application to the bank. An informal understanding that “he takes over the mortgage” – without the bank’s consent – is effective only as between the spouses themselves, not as against the bank.

What if the former spouse stops paying?

This is one of the most serious practical problems after divorce where the mortgage has not been formally resolved. If one former spouse stops paying the instalments, the bank has the legal right to demand the full instalment from the other – and this is entirely consistent with the law, because the joint and several character of the obligation has not changed.

What can the spouse forced to cover the full instalment do? They may subsequently seek reimbursement from the former spouse through a right of recourse (roszczenie regresowe) under the provisions of the Civil Code. This requires separate court proceedings, however, and does not guarantee rapid recovery – particularly where the former spouse has no significant assets.

This is precisely why the mortgage question is best resolved as early as possible – ideally during the divorce proceedings or immediately after they conclude.

How to deal with the mortgage when dividing joint assets

The division of joint marital assets after divorce covers not only assets (the property, savings, a car) but also liabilities – including the mortgage. In division proceedings, whether before the court or before a notary, it is possible to specify which of the former spouses will take responsibility for servicing the mortgage, together with any financial adjustment reflecting the value of the property.

It must be borne in mind, however, that such a provision is effective only between the parties themselves – as far as the bank is concerned, the mortgage remains a joint and several obligation until the bank formally consents to releasing one of the debtors.

The options available include: selling the property and using the proceeds to repay the mortgage; one spouse assuming the mortgage (with or without refinancing); or maintaining the joint ownership and the joint mortgage until one of the spouses is in a position to refinance the loan independently.

Practical guidance

Before filing for divorce or making decisions about the division of assets, review the mortgage agreement carefully – in particular the provisions on changing the borrower and the possibility of early repayment.

Do not assume that an informal agreement with your former spouse will protect you from the bank’s claims. The only effective protection is the bank’s formal consent to an assumption of debt, or full repayment of the mortgage.

If you are concerned that the former spouse may stop servicing the loan, monitor the state of the mortgage account – as a co-borrower you are entitled to do so. Any payment default will affect your credit history regardless of whose “fault” the default is.

For foreign nationals, one additional practical point: where the property is located in Poland, Polish law governs the mortgage and the division of the property. If you are considering purchasing a property jointly or already have a joint mortgage, understanding the Polish rules on marital property and joint liability is important before any decisions are made.

FAQ

Does a divorce judgment release me from liability for the joint mortgage? No. A divorce judgment has no effect on the mortgage agreement concluded with the bank. Joint and several liability of both former spouses towards the bank continues until one spouse formally assumes the debt – with the bank’s consent – or until the mortgage is fully repaid.

Does the bank have to agree to one spouse taking over the mortgage? Yes. Assumption of debt requires the creditor’s consent (Article 519 of the Civil Code). The bank assesses the creditworthiness of the person assuming the debt independently and may refuse if it considers that the guarantee of repayment is insufficient.

Can I claim reimbursement from my former spouse for instalments I paid on their behalf? Yes – through a right of recourse under the Civil Code. Where you have paid instalments that should have been the former spouse’s responsibility, you may seek reimbursement through separate court proceedings. This requires a separate legal action and does not guarantee swift recovery.

What if we cannot agree on what to do with the mortgage? The allocation of liabilities can be addressed in proceedings for division of joint marital assets – before the court or before a notary. Regardless of any such agreement between the parties, the mortgage remains joint and several as far as the bank is concerned until the bank formally consents to a variation of the loan agreement.

Does a prenuptial or postnuptial property agreement protect me from liability for the mortgage? A property separation agreement (intercyza) establishes separate property for the future – it does not operate retroactively. A mortgage taken out before the agreement was concluded remains a joint obligation of both spouses. The agreement does, however, protect against liability for obligations incurred by the other spouse after the date of its conclusion.

I am a foreign national – does Polish law apply to our mortgage? Where the property secured by the mortgage is located in Poland, Polish law governs the mortgage and the rights and obligations attached to it. The rules on joint and several liability described in this article apply regardless of the spouses’ nationality. Where one or both spouses are not Polish nationals, questions about which country’s law governs the matrimonial property regime may arise under EU Regulation No 2016/1103 or Polish private international law rules. Legal advice on the specific situation is recommended.

Have questions about a joint mortgage after divorce or want to know how to address it in the division of assets? Call: +48 531 335 713 or email: kancelaria@prawnikodrozwodu.pl

This article is for general informational purposes only and does not constitute legal advice. Every family law case is individual and requires analysis of the specific facts and documents involved. The law firm accepts no liability for actions taken on the basis of the information contained in this article. For advice tailored to your situation, please contact our office.

Kancelaria Prawa Rodzinnego (Family Law Office): Adwokat Michalina Koligot, Adwokat Marta Krzyżanowicz, Adwokat Anna Konrady, Radca prawny Joanna Jędrzejewska ul. Mickiewicza 18a/3, 60-834 Poznań | tel. +48 531 335 713 | kancelaria@prawnikodrozwodu.pl | www.prawnikodrozwodu.pl