When liability for the husband's debts extends to the wife

Taking out a loan is a responsible and important decision. You should soberly assess your strengths, calculate your financial capabilities and, if possible, pay it off as quickly as possible.

This will reduce overpayments. When one person takes out a loan, then, in general, it is clear who will repay it. But what if the citizen is married? Let's talk about such a common topic as the spouse's responsibility for the loan. Does the debt extend to the wife?

• 1 Law
• 2 Joint and several liability
• 3 Reasons
• 4 Can he be a guarantor?
• 5 Loan repayment after divorce
• 6 After the death of one of the spouses

Is one spouse obligated to pay the debt after the death of the other? How does the solidarity of husband and wife help to get rid of the loan together? Let us consider the identified issues further.

What the law says

For the law, both spouses are equal; they have identical rights and obligations. To avoid confusion, we will consider whether the wife is responsible for her husband’s loans. But at the same time, we also assume the opposite situation, when the husband is also responsible for loans issued by his half in the marriage.

Everyone is well aware of the law, which states that all property acquired during marriage belongs to both spouses in equal shares. And it didn’t matter that someone was working and someone was sitting at home. The only exception is if a different state of affairs is not determined by the marriage contract. In fact, it is rarely issued, but this must be kept in mind.

And debts are also recognized as an asset acquired during marriage, and therefore belong to the spouses in equal shares. But there is an important exception. The law provides for situations where one of the spouses did not know about the existence of the loan or it was spent on the personal needs of the borrower himself.

Important points of Article 45 of the Family Code of the Russian Federation on foreclosure on the property of spouses:

• Initially, the person registered as the main borrower is responsible for repaying the loan. However, the husband's debts during the marriage may be claimed from the wife if the property of the direct debtor is insufficient to cover the debt;
• if the loan funds were spent on common family goals, then the debt is also considered common, even if the other half is not registered as either a co-borrower or a guarantor;
• if the common property of the spouses was acquired with money obtained by one of them by criminal means, then the penalty in any case is imposed on both.

The above norms of Article 45 of the RF IC are suitable for all types of debts and apply not only to loans.

Paying off a loan after a divorce

Statistics say that more than half of marriages end in separation of the spouses. Should a wife pay off her ex-husband's debt? According to the law, all obligations, be it division of property or repayment of a loan, fall on the shoulders of both citizens. Of course, if the fact of joint spending was proven or there was a guarantee.

ATTENTION! If a spouse took out a loan before marriage, he continues to repay it himself. This is a personal duty.

What to do if the apartment is under mortgage? Often one of the spouses takes out a new loan and repays the old one. Both citizens already pay for the new loan together, sealing their decision with an agreement.

Situations often arise when one of the former spouses pays regularly, and the other ignores the bank’s calls. In this case, one of the citizens will have to prove his responsibility by first contacting a credit institution.

But in most cases, you have to file a claim in court, attaching all available evidence to it - an agreement, checks, receipts, etc. The authority, according to Article 399 of the RF IC, can make a positive decision if:

1. it has been proven that one of the spouses deliberately avoids loan payments;
2. it has been proven that one of the spouses has never officially worked;
3. it was proven that one of the spouses spent money for personal purposes.

For persistent defaulters, there is a way out in the form of bankruptcy. But this is an extreme case, because... the procedure imposes a lot of restrictions on the citizen and he will definitely never receive a loan from a serious credit institution.

Marriage is valid, money spent on general needs

First, let's consider the situation when we are talking about a loan issued as part of a marriage union. In this case, the borrower is the stronger half, and the money is spent on family needs. Is the wife responsible for her husband's loan in this case?

For example, if a loan was issued for a car for a family, for a vacation, for repairs, etc. That is, in fact, the loan funds were spent consciously together, despite the fact that only one person was the borrower.

Guided by the main article regulating these relations, RF IC 45, the debt burden falls on both spouses. But according to paragraph No. 1 of this article, in case of delay, the bank can initially contact only the main borrower.

If the loan is repaid without delay, the bank will not touch the second spouse at all. Problems arise with delays and divorces with existing debts.

How will the bank initially act in case of delay:

1. Concerning the debtor by phone, negotiations with him.
2. Involvement of collectors who are also authorized to work only with the main borrower.
3. The bank's appeal to the court if the above actions do not lead to results.
4. The entry into the case of a bailiff who can seize 50% of the salary and withdraw money from the borrower’s cards and accounts.

And if, for example, there is an imposition of 50% of the salary, and the debt is slowly being paid off, the other half has nothing to fear: the debtor’s personal funds are enough to pay off the problem debt. But the situation is different - if the debt is large or if there is nothing to take from the borrower.

Is it possible to take out a loan without my wife's consent?

When issuing a consumer loan or issuing a credit card, the bank checks the solvency and credit history of the borrower. The lender does not require written consent to issue a loan from the other half. Obtaining such permission is not provided for by current legislation.

The situation is different with mortgages. When registering it, the spouse acts as a co-borrower, i.e. signs the loan agreement along with the borrower, thereby agreeing to all the conditions.

Allocation of the spouse's share to pay off the debt

If the husband has loan debts and his personal funds are not enough to pay off the problematic obligation, then the bailiff can initiate the allocation of the wife’s share. In practice, this rarely happens, but it is not impossible.

Everything is carried out strictly through the courts. Only property that is recognized as acquired in a joint marriage is taken into account. What exactly is considered such property is determined by Article 34 of the RF IC. In fact, this is everything except property received before marriage, inheritance and gifts.

Property registered in the name of children does not belong to joint property and cannot participate in the allocation of a share.

So, if we consider whether the wife is responsible for her husband’s loans or the husband for his wife’s debts, then in fact - yes. But exactly after the moment when the main borrower is declared insolvent. Then the bailiff can, through the court, allocate the property share of the second spouse and cover the debt with it.

If the spouse is a guarantor or co-borrower

First, let's look at the situation with co-borrowers. This usually happens with mortgages. In this case, the wife’s duty is equally the husband’s duty and vice versa. A credit transaction involves two borrowers who are jointly and severally responsible for repaying the loan.

If the monthly payments stop arriving, the bank initiates a collection process against both. Sometimes it happens that only one person has to pay: for example, only the husband has an official income, nothing is taken from the wife. Then the “injured” party can go to court for a fair division of the debt. It doesn't matter whether marriage works or not.

It happens that the second half is registered as a guarantor. For example, this is necessary to increase the chances of approval when receiving a cash loan. In this case, the bank has the right to collect the entire debt from the guarantor, regardless of its status in relation to the main borrower. But after that, the guarantor can go to court and recover the spent funds from the debtor-spouse.

Can he be a guarantor?

Currently, credit organizations practice the following scheme. The bank employee says that you can take out a spousal loan. What does it mean? In a contract, for example, drawn up for a husband, the wife will be entered as a guarantor.

The bank may offer any additional bonuses if the spouses take such a step. But most often they will simply refuse if there is no guarantor. Especially if you have an uneven credit history. Either spouse has the right to refuse. He simply is not obliged to do this, and this issue will be resolved within the family.

Let's say the hypothetical couple agrees. The second spouse is included in the contract. Now, if the loan is overdue or a debt arises, calls will also be received on the other half’s phone. The court will reject the claim because The contract contains the signature of both spouses. The bank, in fact, does not care who will pay the debt.

IMPORTANT! The credit institution receives additional insurance. One way or another, at least one person will be bound by the agreement and must pay the money.

In this case, it is extremely important to calculate your strength. In case of delay, responsibility will fall on the second spouse. By the way, the practice of guarantee is used by the bank for loans for large amounts.

Let us note a small nuance. Citizens often wonder: is the consent of a spouse required to take out a loan? Based on the legislation, we can say with confidence that no.

But many banks, for reinsurance purposes, especially if the amount is impressive, ask the spouse to act as a guarantor. Based on practice, consumer loans for inexpensive items are issued without approval. For example, for household appliances.

Civil marriage is associated in modern Russia with one of the forms of cohabitation, but legally this is not the case. This is the name for a union that is registered with the state registration office (registry office), but does not imply a wedding in a church.

Husband's debts on a loan he took out for personal purposes

This is a completely different question, which often caused many problems and headaches. Previously, whether the husband was obliged to pay the loan for his wife or vice versa was not even specified. Debts acquired during marriage were joint by default, no matter what. But since 2016 this situation has changed.

During the trial of a family conflict, which concerned specifically the division of debts between spouses, the case reached the Supreme Court, which put an end to the controversial issue of whether the wife was responsible for her husband’s debts.

In 2021, the Supreme Court made an important decision. He determined that a loan debt is recognized as joint only if the money was spent on the needs of the family. If otherwise is not proven, then the debt is recognized by the one who took it.

The collection of evidence in such cases is carried out by the party interested in the distribution of the debt.

Causes

• The loan was taken out for real estate or an expensive car, but the couple decided to divorce.
• The debt is too large for one person to pay off and affects the overall budget of the family.
• One of the spouses is trying to prove his innocence, but part of the funds has already been spent on him. For example, a sea ticket was bought for a wife, but the husband took the loan.

It is very important to prove your non-involvement from the first calls from the bank or receiving information about a loan from your spouse/other relatives/third parties .
Collect evidence. Checks, certificates, receipts, perfect credit history, after all. The more arguments the party who did not take out the loan gives, the higher the chance of getting rid of burdensome debts. If necessary, you can file a counterclaim, but this step should be carefully considered. It is possible to engage a lawyer to review your specific situation and make recommendations. In most cases, you will have to find witnesses who can confirm that the loan funds were spent by only one of the spouses.

If a marriage contract has been drawn up, then payment of debts occurs strictly according to the points of the document, using the property of each spouse.

If the spouse died

Now let’s look at whether the wife is responsible for her husband’s loans if he dies. In this situation, the inherited property includes not only monetary and other assets, but also debts, if the deceased had them.

All persons entering into an inheritance receive, in addition to the property, the debts of the deceased. Moreover, in exactly the same shares as indicated upon receipt of the inheritance. And if the spouse received, for example, ⅓, then she must pay a similar part of this obligation. If this is not done voluntarily, the bank or other owner of the debt has the right to go to court.

In what cases will your spouse have to pay your debts?

Judicial practice provides grounds for such a transfer of responsibility. The main reason is that the money was spent on family needs. This could be buying property for children or renovating an apartment. In such a situation, the spouses will pay equally. If one of the parties becomes insolvent, the debt passes to the other person. In this case, there must be evidence in the form of a bankruptcy procedure, certificates about loss of work, deterioration in health, or the appearance of a disabled dependent in the family.

All debts of the deceased spouse pass to the wife after entering into inheritance rights. The period for receiving property is six months. If a woman renounces her right, she will be relieved of her obligations.

Liability cannot be avoided if the loan was issued by common agreement and the parties are co-borrowers. With this option, they will pay equally or in parts that were determined by the contract.

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Comments: 45

Your comment (question) If you have questions about this article, you can tell us. Our team consists of only experienced experts and specialists with specialized education. We will try to help you in this topic:

Author of the article Irina Rusanova

Consultant, author Popovich Anna

Financial author Olga Pikhotskaya

1. Svetlana
   09/11/2021 at 20:27 Please tell me which spouse should collect evidence that the loan was not spent on the needs or needs of the family?
   Reply ↓ Anna Popovich
   09.13.2021 at 13:01

   Dear Svetlana, in accordance with Article 56 of the Civil Procedure Code of the Russian Federation dated November 14, 2002 No. 138-FZ (as amended on July 1, 2021), each party must prove the circumstances to which it refers as the basis for its claims and objections.

   Reply ↓

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