Mieszkanie na kredyt a podział majątku po rozwodzie

Jestem z żoną po rozwodzie, czeka nas podział majątku. Żona została w naszym dotychczasowym mieszkaniu, ale nie chce płacić za nie kredytu. Komu w takim razie przypadnie mieszkanie w podziale majątku?

Sąd w podziale majątku ustala wartość mieszkania BEZ UWZGLĘDNIENIA pozostającego do spłaty kredytu hipotecznego, obciążającego oboje małżonków.

DLACZEGO?

W sprawie o podział majątku sąd dokonuje podziału aktywów (nieruchomości, ruchomości), a NIE ROZSTRZYGA o długach!

Na logikę: ten kto przejmuje mieszkanie, ten przejmuje kredyt! Niestety … tak to nie działa. Dlaczego? Bo banku nie interesuje rozwód małżonków, czy też sprawa o podział majątku.

Podział majątku NIE WPŁYWA na obowiązki wobec banku. Rozwód małżonków nic dla banku nie znaczy, chyba że małżonkowie we własnym zakresie dokonają modyfikacji umowy kredytowej (chociaż i taką zmianę trudno, bo banki nie mają interesu w tym, aby wyzbywać się dobrowolnie jednego z dłużników; zazwyczaj więc ze zgodą banku idzie w parze odpowiednia opłata bankowa albo podniesienie marży kredytu).

W chwili podziału majątku sąd nie wie, jak w przyszłości wyglądać będzie spłata kredytu obciążającego oboje małżonków (czy małżonkowie będą płacić po połowie, czy tylko jeden z nich, czyli w praktyce ten, kto mieszkanie przejął). Bowiem przyznanie mieszkania jednemu z małżonków NIE POWODUJE wygaśnięcia długu drugiego małżonka wobec banku. Może więc dojść do sytuacji, że ten, kto mieszkanie w podziale otrzymał, przestanie spłacać kredyt, a wówczas bank zwróci się o spłatę do drugiego małżonka (który mieszkania w podziale nie otrzymał…). Dlatego też, wedle najnowszego orzecznictwa Sądu Najwyższego, małżonkowi, który mieszkania w podziale nie otrzymał, należy się spłata w wysokości rynkowej wartości mieszkania, a nie spłata obniżona o dług.

Z kolei, może dojść do odwrotnej sytuacji, w której małżonek, któremu w podziale przypadło mieszkanie, będzie narażony na dwukrotną spłatę, raz spłacając małżonka, a drugi raz spłacając samodzielnie kredyt.

W obu przypadkach splata rat przez jednego z małżonków po podziale majątku może być podstawą regresu między nimi jako dłużnikami solidarnymi, dochodzonego przed sądem w procesie cywilnym.

Co to jest regres? W tym wypadku to prawo do żądania od drugiego kredytobiorcy połowy zapłaconych samodzielnie rat kredytu.

Podsumowując, jeżeli byli małżonkowie pozostają dłużnikami banku, to sąd przy podziale majątku bierze pod uwagę wartość rynkową mieszkania bez obciążenia hipotecznego. Najlepszym rozwiązaniem w tego typu sprawach jest więc przejęcie kredytu przez jednego małżonka.

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