The problem of the unpaid mortgage

The end of a marriage or a cohabitation brings with it complex financial issues, and one of the most critical concerns the joint mortgage on the family home. When an ex-spouse stops paying their share, the situation can quickly become unsustainable, generating not only significant financial damage but also severe emotional stress. Understanding your rights and the protective tools available is the first step in addressing the crisis. As a divorce lawyer in Milan, lawyer Marco Bianucci has extensive experience in managing these delicate issues, offering legal support aimed at protecting the assets and peace of mind of his clients.

Joint Liability towards the Bank

The first fundamental concept to understand is that of joint liability. When a mortgage is in both names, both signatories are responsible for the entire amount of the installment towards the lending institution. This means that the bank, in case of non-payment, can legally demand the entire sum from only one of the co-borrowers, regardless of internal agreements made during separation. For the bank, both spouses are 100% debtors until the loan is fully repaid. Consequently, the spouse who continues to pay to avoid foreclosure or a negative credit report bears a burden that would not fall entirely on them.

Action for Recourse: Recovering Paid Amounts

The main legal tool to protect the compliant spouse is the action for recourse, governed by Article 1299 of the Civil Code. Through this legal action, the person who has paid even the share of the defaulting ex-spouse can ask the court to order the latter to reimburse all sums paid on their behalf. To initiate such an action, it is essential to keep all documentation proving the payments made, such as bank transfer receipts or account statements. The action for recourse allows for the recovery not only of the principal amount but also of the interest paid to the bank on behalf of the other spouse.

The Approach of the Bianucci Law Firm

The approach of lawyer Marco Bianucci, an expert in family law in Milan, is pragmatic and strategic, aimed at resolving the problem as effectively and quickly as possible. The first phase consists of a thorough analysis of the separation or divorce agreements to verify the provisions regarding the mortgage. Subsequently, a formal notice letter is sent to the ex-spouse, demanding payment of arrears and warning them of the legal consequences of their default. If the out-of-court route does not yield results, the opportunity to initiate an action for recourse is evaluated. In parallel, if the financial situation of one of the spouses has changed, a request for modification of divorce conditions can be considered to rebalance financial obligations.

Frequently Asked Questions

What happens to my credit rating if my ex doesn't pay the mortgage?

In case of non-payment of one or more installments, the bank is required to report both co-borrowers as 'bad payers' to financial credit bureaus (such as CRIF). This report seriously compromises the credit rating of both, making it very difficult to obtain future loans or financing. That is why it is crucial to act promptly, even by paying the entire installment and then seeking recourse against the ex-spouse.

Can I force my ex to sell the marital home?

If an agreement for sale cannot be reached, it is possible to go to court to request the dissolution of joint property ownership. This procedure, known as judicial division, can lead to the forced sale of the property at auction. The proceeds will then be divided among the co-owners, after deducting the outstanding mortgage debt. It is an extreme solution, but sometimes necessary to resolve the stalemate.

What exactly does the action for recourse cover?

The action for recourse allows for the recovery of the principal and interest portions of the mortgage that were paid on behalf of the ex-spouse. It does not cover other expenses not directly related to the loan, unless they were provided for in the separation agreements. It is essential to be able to precisely demonstrate the amounts paid in excess of one's own share.

How long do I have to take action for recourse?

The right to claim reimbursement for individual installments paid on behalf of the ex-spouse is subject to a ten-year statute of limitations. The limitation period does not start from the date the mortgage was taken out, but from the date of each individual payment made in place of the defaulting spouse. Therefore, it is possible to take action even after some time, as long as it falls within this timeframe for each installment.

Request an Assessment of Your Case in Milan

Dealing with non-payment on a joint mortgage requires expertise and timeliness. If you find yourself in this difficult situation, it is essential to act immediately to limit damages and assert your rights. The Bianucci Law Firm, located in Milan at via Alberto da Giussano, 26, offers legal advice to analyze your position and define the most effective strategy. Contact lawyer Marco Bianucci for an in-depth assessment of your case and to receive the necessary assistance from a divorce lawyer experienced in handling these issues.