It may just happen to you. Your partner's creditor forcloses on the house you own with your partner. You thought you had everything well organised when you bought the house. After all, there are prenuptial agreements or you have concluded a cohabitation contract. The creditor has only been able to forclose on your partner's share of the property, and who only wants to own half of a property when there is another owner attached to it? You are not liable for your partner's debts, so nothing can happen to you, right?

A Practical Example: Attachment and Division of Property

A man owns a property with his girlfriend. They each own half of the property. However, the man has a debt with a lender and the lender has made several attempts to collect its claim from the man. Eventually, the lender forecloses on the man's share of the property. This is an forclose on the undivided half of the house. This is because the other half belongs to his girlfriend, who is not a debtor of the lender.

The property is subject to a mortgage that the husband took out with his girlfriend when they bought the house. The man and his girlfriend are each jointly and severally liable for the mortgage loan. Because the value of the home has increased since the purchase, there is a considerable excess value. If the husband's share were to be sold in foreclosure, the mortgagee would claim the entire mortgage, including the mortgage portion attributable to the girlfriend. This would leave nothing for the lender.

No worries for the husband's girlfriend, one would think. The creditor cannot get hold of her half of the property, right? Unfortunately for the man's girlfriend, the law does offer the lender an opportunity to secure (part of) his claim. Pursuant to Article 3:180 paragraph 1 of the Civil Code, a creditor who has a claim against a shareholder that is due may claim the division of the community, but not beyond what is necessary to recover his claim.

If the lender then claims division of the property between the husband and the girlfriend, the court can determine the method of division if the husband and his girlfriend do not reach an agreement. This can include apportionment, oversharing or sale of the property. If the court can determine that the entire property should be sold so that the total proceeds can be divided, this provides a solution for the lender. After paying off the mortgage debt, the husband's girlfriend receives half of the net proceeds. From the other half, the lender's claim is first satisfied, after which the remaining amount accrues to the husband.

Protection of partner:
Article 3:180 DCC still protects the husband's girlfriend to some extent. The creditor can only claim partition to the extent necessary to recover his claim. This means that although the girlfriend can be forced to cooperate in the sale of the house, her share in the surplus value remains hers. The creditor cannot touch that.

In addition, the court can always be asked to weigh up interests in determining the manner of division. In a case that played out before the Rotterdam District Court on 3 August 2022 ( ECLI:NL:RBROT:2022:7376), a creditor claimed the partition and sale of an undivided property whose owners were married to each other on prenuptial agreements in order to recover the claim from one of the owners. The court considered that the creditor had a legitimate interest in immediate partition. However, given the circumstances and the interests of the female owner, the claim for partition was temporarily barred until the appeal was decided, but for three years at the latest. The woman was still living in the property with her children, while she would not be able to find accommodation easily and, moreover, an appeal procedure was also pending between the male owner ( who was also a debtor) and the creditor. The court decided that the interests of the female owner outweighed those of creditor for immediate distribution, and provisionally prohibited the sale of the property.

Advice from a specialist family law lawyer:
When faced with a creditor of your partner or co-owner of your home, the consequences can be complicated and emotionally fraught It is advisable to seek legal advice from an experienced (family law) lawyer A lawyer can help you understand your rights, assist you in negotiations, monitor important deadlines and ensure that your interests are adequately protected If you have any questions or would like advice, then contact specialised family law lawyer Ms Angelique van den Eshoff or one of the other lawyers at SPEE advocaten & mediation.