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Can the marriage regime affect home loans?

You are going to take out a home loan with your spouse, but you don’t know if the chosen marriage regime may imply the loan? In this article, we try to explain the various marriage regimes that exist and how each one has an impact if the couple takes out a housing loan, or, in case of divorce, wants to get out of it.

What marriage regimes exist?

Provided by law, there are three marriage regimes: general community, community of acquired and separation of goods.

get married by general community regime means that the assets of the two elements (present and acquired in the future), become joint patrimony of the couple as soon as they celebrate their marriage. This is a marriage regime that is not possible to choose, if any of the elements of the couple already have children from previous marriages.

If you choose to marry community of acquired regime, only the goods acquired after the celebration of the marriage become common property of the couple. That is, assets acquired before marriage are considered to be the property of each member of the couple.

Then, if you want to marry the property separation regimeplease be aware that this prenuptial agreement states that each member of the couple retains exclusive ownership of their own property, present and future to the marriage ceremony. If, at the time of marriage, one of the spouses is 60 years old, it is mandatory by law to adopt this marriage regime.

But if there is no decision on the marriage regime through a prenuptial agreement, the marriage is automatically governed by the modality of communion of acquired. Therefore, if you want to establish another of the property regimes, a prenuptial agreement must be signed at the civil registry office or through a public deed at a notary’s office.

Furthermore, it still has de facto union. This regime does not imply a celebration of marriage, therefore, it does not have a defined asset-sharing regime. You assets acquired by the couple are divided according to the co-ownership regimeand the couple can enter into a cohabitation contract or prior arrangement of reference if division of assets is necessary.

Also read: Is it possible to have a wedding without spending a lot of money?

Let’s buy a house on credit. Can our marriage regime affect?

In this sense, the marriage regiment can affect housing credit depending on whether the future assets become the common property of the couple or not. Let’s take a closer look at how it can affect each regime.

Communion of acquired

If they have opted for the community of acquired, assuming that the present and future assets of each one become common property, the two members of the couple must be proponents of the housing loan and owners of the property for acquisition.

general community of goods

In the general community of property, in which the future property becomes joint patrimony as soon as the marriage is celebrated, also the two spouses must be applicants for the housing loan since the property to be acquired will be common property.

separation of goods

As in the regime of separation of property there is no joint patrimony, since the property of each one remains exclusive after the celebration of the marriage, the choice of buying the property together or individually is left to the couple. Ie, it is not mandatory to be both applicants on the creditand only one can remain as owner of the property.

de facto union

If they are in a de facto union, the purchase of a house through a home loan can be done together and the credit is the responsibility of both. So the two can stay as owners. But, as it is not a matrimonial regime, it’s a couple’s choice whether you want to do it together or individually, and it has no implications.

What if we want to transfer the credit to another bank?

if they have borrowed already married and both as credit proponents, with no changes in this regard in relation to the initial contract, Is it possible to transfer credit without changing ownership of the property.

However, if you purchased the property through a home loan while single and, at the time of the transfer, had already entered into a marriage, the situation may differ. If you have married, however, through community of property regime, your spouse becomes part of the loan as well. You can optionally also become the owner of the property, but in this case, you will have to pay IMT on the part to be acquired.

If, however, you have married, but at regime of separation of property, there is no longer a legal obligation debt confession (entry on the loan), and the couple can decide whether or not they want to do so.

As a rule, the banks ask for the intervention of spouseseven though it is not required by law, so that they can more easily guarantee the payment of the loan.

Separated father and mother figures and children under magnifying glass in the middle
A magnifying glass looks at a man with a palm separates children from mother to father. Depriving a mother of parental rights and transferring children under guardianship. Child custody after divorce.

What happens if we get divorced?

In case of divorce and in which one of the members of the couple intends to keep the property and the credit, the situation also depends from regime to regime.

Communion of acquired

In the acquired community regime, if the couple divorces, it must be defined in the shares who will keep the house and the loan debt. Therefore, the bidder who will remain as the owner, can ask the bank to discharge the debtthat is, the departure of the ex-spouse’s credit proponent This situation then depends on the bank’s risk analysis.

general community of goods

If they are married under the general community of property regime, in case of divorce and in accordance with the law, none of the members of the couple can receive more in the sharing than they would have received if the marriage had been celebrated under the community of acquired regime. Ie, it must be stipulated in the sharing agreement who will own the property and the loan debt, and the other spouse can be exonerated from the credit, upon acceptance by the bank.

separation of goods

As in the regime of marriage in separation of property, there is no common property between the couple, the property and credit made to individual title, does not imply division or exoneration in case of divorce. But if the property was acquired in setare then the same conditions apply than in an acquired community regime.

Also read: I’m going to buy a house: What is the best term for housing credit?

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