The Ex And The Mortgage: Who Gets To Keep The House?

A breakup or divorce is hard enough without a mortgage hanging over it. In the Netherlands, most co-owners are “jointly and severally” liable, meaning the bank can pursue either of you for the full payment until the lender releases one name. Moving out does not end that liability, and decisions you make now will affect your credit, taxes, and ability to buy again. If children are involved, stability and timing add another layer of urgency.

The good news: there is a clear way through. Whether one partner keeps the home, you sell, or you stay co-owners for a period, the process follows practical steps—confirm how you own the home and which matrimonial property regime applies, get a valuation, calculate equity (overwaarde) or shortfall (restschuld), agree on a fair buyout, secure lender approval to release the other partner, pass the notarial deed of division, and handle tax consequences (interest deduction, bijleenregeling, NHG). Written agreements and the right sequence reduce risk and cost.

This guide walks you step-by-step through your options and obligations under Dutch law: ownership and liability, choosing a route (buyout, sell, or temporary co-ownership), calculating figures, affordability and lender requirements, notary actions, tax points, managing the in-between period, what to do if cooperation breaks down, special cases (NHG, negative equity, adding a new partner), timelines, costs, documents, and when to seek legal help. Let’s begin.

Step 1. Confirm how you own the home and which matrimonial property law applies

In the ex-and-the-mortgage question—who gets to keep the house—confirm who is on the title deed and which matrimonial property regime applies. Married or registered partners after 1 Jan 2018 fall under limited community of property unless a prenuptial agreement says otherwise; earlier or foreign marriages can differ. If you married abroad, Dutch matrimonial law may not apply—ask a civil-law notary to establish the governing regime.

Step 2. Map your mortgage, insurances, and liabilities (joint and several liability, NHG)

Before deciding who keeps the house, get a clear picture of your current obligations. In the Netherlands, joint borrowers are “jointly and severally” liable until the lender formally releases one name. Gather hard data now so negotiations and lender talks are grounded in facts, not guesswork.

Mortgage basics: Current balance, interest rate, fixed-rate end date, and the names on the mortgage deed/loan.
Lender conditions: What your bank requires to release an ex (income test, documents, timing); request a current statement and original terms.
NHG check: Confirm if the loan has National Mortgage Guarantee; under certain conditions NHG can forgive a residual debt after sale.
Linked insurances: Review and update term life insurance tied to the mortgage (beneficiaries, ownership, coverage) to match the new situation.

Step 3. Choose your route: buyout, sell, or stay co-owners temporarily

With the facts in hand, decide how to answer the ex-and-the-mortgage question—who gets to keep the house—by balancing housing needs, equity, and lender reality. In Dutch practice, three paths cover almost every case. Be pragmatic: until a takeover or sale completes, you both remain jointly and severally liable, regardless of who lives there.

Buyout/takeover: One partner keeps the home. The bank tests affordability and, if approved, releases the other from liability via a notarial deed of division. A buyout is typically based on each partner’s share of equity (overwaarde). Expect valuation, notary, advisor, and bank admin costs; you may need to increase the mortgage.
Sell the property: The mortgage is repaid first; you split profit or residual debt (restschuld) per your agreement. With NHG, a remaining debt may be forgiven under conditions. Both owners must consent; use mediation or court if one won’t cooperate.
Temporary co-ownership: Both stay on title and loan. Set clear agreements on occupancy, payments, timeline, and exit triggers. This is risky, often blocks next steps, and the lender can pursue either of you for missed payments.

Step 4. Get a valuation and calculate equity or debt (overwaarde or restschuld)

A defensible value is the hinge for any buyout or sale. For negotiations you can look at the WOZ value, but lenders and notaries typically work with a recent appraisal (taxatie). Use that figure against the latest lender statement to calculate whether you have equity (overwaarde) or a shortfall (restschuld).

Order an appraisal: Commission a recent taxatie; use WOZ only for preliminary talks.
Get a payoff figure: Request the current mortgage balance from your bank; you both remain liable until release.
Run the numbers:
- equity (overwaarde) = appraised value – outstanding mortgage
- shortfall (restschuld) = outstanding mortgage – (sale price or appraised value for buyout)
Negative equity: Agree how to split any restschuld; with NHG, residual debt may be forgiven after a sale if conditions are met.
Record it: Keep the valuation and calculations for your settlement agreement and notary file.

Step 5. Work out the buyout amount and settlement terms

This is where “the ex and the mortgage: who gets to keep the house?” becomes a number and a plan. In Dutch practice, if one partner keeps the home, they buy out the other’s share of the equity (overwaarde); where there’s a shortfall (restschuld), you agree how to divide it. Put every term in writing to avoid later disputes.

Baseline calculation: buyout = ex’s share × equity (overwaarde) (normally 50/50 unless prenup/partnership/cohabitation contract says otherwise).
Negative equity: Agree how to split any restschuld; with NHG, residual debt may be forgiven after a sale under conditions.
Funding and timing: Pay the buyout in cash or via an increased mortgage; settle at the notary on the deed of division and link payment to the lender’s release of the departing partner.
Who pays what: Allocate appraisal, bank admin, advisor, and notary costs; set occupancy/keys date and update any linked term life insurance.

Step 6. Check affordability and lender approval for a transfer or new loan

Before anyone keeps the house, your lender must agree to transfer the mortgage to one name or issue a new loan. This review mirrors a fresh mortgage application, and post‑separation disposable income usually reduces your borrowing power. Until the bank formally releases the departing partner, you both remain jointly and severally liable. If affordability falls short, you can add a new partner to the deed—note you then become jointly liable together.

What lenders assess: Creditworthiness and income to carry the full loan alone.
Core documents: Divorce/separation agreement, employer’s declaration, latest annual statement, and current mortgage statement.
Valuation: Recent appraisal (taxatie) to evidence market value and equity.
NHG status: If applicable, confirm conditions; it can matter for shortfall scenarios.
Possible outcomes: Approval with discharge via notarial deed of division—or refusal, in which case sell or remain temporary co‑owners with clear terms.

Step 7. Put agreements in writing (divorce covenant or separation agreement)

Put every deal on paper. Lenders and notaries rely on a signed divorce covenant or separation agreement when assessing a mortgage takeover and release. Writing it aligns expectations, gives your bank a clear basis, and helps prevent costly disputes later.

Outcome: who keeps house or sell.
Terms: buyout/overwaarde or restschuld split; payment date; who pays mortgage/insurance/utilities/maintenance; occupancy/keys; costs (valuation, notary); mediation/default clause with deadlines.

Step 8. Transfer ownership: discharge of joint liability and deed of division at the notary

Once your lender agrees to release one name, the transfer happens at the civil-law notary. The notary drafts the deed of division and, if needed, a new or amended mortgage deed. Signing these documents both records who gets the house and, crucially, arranges the discharge of joint and several liability while updating the mortgage debt registration.

Prerequisites: Lender approval and your signed divorce/separation agreement with the buyout and cost split.
Signing: Deed of division; plus a new/increased mortgage deed if financing the buyout. A new partner co-signs and becomes jointly liable.
Settlement: The notary settles the buyout and agreed costs on completion.
Effect: After notarization and lender release, the departing partner is off the loan; the remaining partner is solely responsible from that date.

Step 9. Handle taxes and benefits (interest deduction, bijleenregeling, residual debt)

Taxes can swing the answer to “the ex and the mortgage: who gets to keep the house?” in your favor—or not. Plan early so the buyout, sale, or takeover doesn’t jeopardize your mortgage interest deduction or leave you with surprises when you buy again.

Mortgage interest deduction (eigenwoning): It applies to your personal home acquisition debt. This debt is personal and not transferable; any “new” part after a takeover must be annuity/linear to keep deduction (post‑2013 rules).
Bijleenregeling (using equity): If you sell with overwaarde and later buy, failing to reinvest that equity can limit future interest deduction. Document equity and what each partner receives.
Residual debt (restschuld): If sale proceeds don’t cover the loan, you’re jointly responsible. With NHG, the remainder may be forgiven under conditions; otherwise, discuss tax treatment and repayment with a fiscal advisor.
Keep evidence: Save the appraisal, lender statements, and the signed settlement; you’ll need them for your tax return and to substantiate interest deduction claims.

Step 10. Manage the in-between period (payments, occupancy, and risk)

Until the lender signs off and the notary records the deed of division, you both remain jointly and severally liable. Treat the interim like a project: prevent missed payments, avoid new disputes, and protect the asset you’re about to sell or transfer. Put short, practical rules on paper and stick to them.

Payments: Who pays mortgage, insurances, taxes, utilities, and maintenance—by when.
Occupancy/keys: Who lives there, access rules, viewings (if selling), and a clear move-out date.
Decisions: No major expenses or price changes (if selling) without written consent.
Risk control: Keep insurances active, document meter readings/defects, and communicate in writing to track agreements.

Step 11. If cooperation breaks down, use mediation or court options

If negotiations stall, act before missed payments damage both of you. Start with mediation to convert figures (valuation, equity, payments) into clear commitments on sale or buyout, occupancy, deadlines, and a fallback plan. If that fails, escalate with targeted legal steps.

Mediation first: Faster, cheaper, and keeps you in control; record all agreements.
Court permission to sell: If your ex won’t cooperate, a lawyer can ask the court for permission to sell without their consent.
Protect your credit: Until a takeover or sale completes, you remain jointly and severally liable; keep payments current.

Step 12. Special situations: NHG, negative equity, or adding a new partner

Certain edge cases can decide “the ex and the mortgage: who gets to keep the house?” more than anything else. Check quickly whether NHG applies, whether you’re facing negative equity, and whether a new partner will join the mortgage. Each has distinct lender, notary, and settlement implications—plan them before you negotiate the buyout.

NHG (Nationale Hypotheek Garantie): Confirm coverage. If a sale leaves a residual debt, NHG may forgive it under conditions; keep payments current until settlement.
Negative equity (restschuld): Agree a proportional split of the shortfall. If one stays, document how the departing partner settles their share of the undervalue.
Adding a new partner: They co‑sign the mortgage deed and become jointly liable. The bank reassesses affordability; the notary updates title and mortgage deeds.

Step 13. Timeline, costs, and documents you will need

Expect a practical, staged process: valuation, lender decision, and notary completion. Keep payments current throughout to protect both credit files. In straightforward cases, arranging everything typically takes about two months; complex income, negative equity, or non-cooperation can extend this.

Typical timeline: Appraisal and file prep → lender assessment and release decision → notary signing (deed of division and any new mortgage). Often completed in ±2 months, but varies by case.
Common costs:
- Valuation (taxatie)
- Bank administration fee (release/remortgage)
- Notary (deed of division; mortgage deed if needed)
- Advisor fees (mortgage/financial)
- Optional: mediation/legal if cooperation fails
Core documents:
- Divorce/separation agreement and asset division terms
- Current mortgage statement/terms
- Income proof (employer’s declaration and/or annual statement)
- Recent valuation report (taxatie)
- NHG confirmation (if applicable)

Step 14. When to get legal help in the Netherlands

Get a Dutch lawyer when cooperation falters or the stakes are high. Typical triggers: disagreement about buyout/overwaarde or restschuld, refusal to sell or sign lender/notary papers, complex regimes (prenup, foreign marriage), disputes about who may occupy the home, NHG/negative‑equity issues, or urgent payment defaults. A lawyer can formalize terms, seek court permission to sell or set deadlines, and protect you from joint‑and‑several liability risks.

Key takeaways

Who keeps the house comes down to four levers: your ownership/matrimonial regime, the equity math, lender affordability, and cooperation. Until the bank releases one name, both remain jointly and severally liable. A clear sequence—valuation, settlement terms, lender approval, notary—protects your credit and tax position.

Confirm the legal frame: Title deed and matrimonial regime (marriage/registered partnership/prenup/foreign marriage).
Map risks and cover: Mortgage facts, joint liability, linked insurances, and NHG status.
Choose the route: Buyout, sell, or temporary co‑ownership—based on a current appraisal and overwaarde/restschuld.
Paper it first: Put terms in a signed agreement; then secure lender approval and pass the notary’s deed of division to discharge liability.
Watch taxes: Interest deduction is personal; consider bijleenregeling and NHG rules on residual debt.
If stuck: Use mediation or court; keep payments current. Typical timelines are about two months.

Need tailored Dutch legal support? Speak with the team at Law & More.