Liability for a Loan Taken by a Former Spouse After Divorce

“If, during the existence of marriage and the statutory community property of spouses, only one spouse concludes a loan agreement as a debtor, they do not require the consent of the other spouse, even if it is not a common matter.”

“The Civil Code contains no express provision on how claims and debts of spouses connected with their community property and arising during its existence are to be settled. These claims and debts, under § 143 of the Civil Code, do not form part of the community property of spouses, so §§ 149 and 150 of the Civil Code do not apply to them. If these relationships are not specifically regulated, then pursuant to § 496 of the Civil Code (now § 853), one must proceed according to the provisions of the Civil Code which, by their content and purpose, are the closest to them, applying §§ 149 and 150 mutatis mutandis, and also settle the claims and debts of the spouses insofar as they arose during the existence of their community property and in connection with their economic and consumer community.”

“Since there are no shares of either of the co-owners (spouses) in the community property in joint ownership, the creditor, in enforcing his claim which arose during the marriage only against one spouse, cannot limit himself to the ‘share’ of that spouse (debtor) in the joint property. This provision therefore allows the creditor to obtain satisfaction of his claim also from property of which the debtor is a co-owner. The prerequisites for applying this provision are:

1. Existence of a claim arising solely against one of the spouses during the marriage (a separate debt);
2. Execution proceedings (enforcement) also against property that belongs to the community property.
   Even though, in relation to the creditor, the other spouse who is not himself the debtor does not have a personal obligation, that spouse is obliged to tolerate that the creditor’s claim is satisfied, in enforcement proceedings, also from property belonging to the community property of both spouses.”

“The legal consequence of § 147 is that in the event of non-fulfilment of a separate obligation of one spouse, the creditor may, in enforcement proceedings, seek satisfaction of his claim not only from the exclusive property of the obligated spouse but also from property belonging to the community property of the spouses. This provision does not create a joint obligation of the spouses; it only regulates the manner of satisfying a creditor’s claim against one spouse in enforcement proceedings by allowing it to be satisfied also from property belonging to the community property of both spouses, but not from the exclusive property of the other spouse. The person obligated towards the creditor under the obligation relationship will remain only that spouse whose separate obligation arose during the marriage. Enforcement against property belonging to the community property of spouses will be possible on the basis of a decision binding only one of the spouses. A separate decision against the other spouse is not required.”