Upon divorce, the issues of division of property, determination of the maintenance and place of residence of children, fulfilment of credit obligations, surnames and other matters of concern to the spouses have to be discussed.
Perhaps the best-known rule is that the property of spouses acquired in marriage is divided equally. However, it is important to know that in certain circumstances the court may not apply this principle. For example, if personal funds of one of the spouses were used for the acquisition of immovable property during the marriage (e.g., from the sale of property owned before the marriage, or inherited or received as a gift), the principle of equal shares will not apply. Another case is when one of the spouses, with whom the children will live, asks for a larger share of the property. The principle of equal shares may also be waived because of the spouse's state of health or inferior financial situation.
Although the property acquired before marriage is personal property that is not subject to division upon divorce, there may be exceptions. If one spouse's home has been substantially improved during the cohabitation period using the other spouse's money or work, it may be recognised as community property of the spouses and divided when they divorce.
This may also be the case if the loan was used to buy the property before the marriage, but the marriage took place shortly afterwards and the loan payments were made from the joint family budget.
Every divorce has very different circumstances. Dividing a dwelling is a delicate but solvable issue.
Important issues affecting the division of the dwelling in the case of divorce:
- Who owned the dwelling? Was it owned by both or one of the spouses?
- Was a home loan taken? Was the loan taken by both spouses together or separately?
Scenarios for the division of a dwelling acquired with a loan
Acquiring a dwelling with a loan the credit repayments on which are still made to the bank can be a major headache. To avoid misunderstandings and confusion, it is necessary to assess and choose one of four possible scenarios with the creditor's consent.
- Scenario 1. Both spouses remain co-owners and co-borrowers and have to repay the loan together after the divorce. The spouses may agree between themselves on the monthly amounts to be repaid. However, this is a risky way to go, as it means assuming liability for the other spouse and, if the other spouse does not pay his/her share, the need to cover it may arise.
- Scenario 2. The dwelling is sold, the loan is repaid and, in the event of a profitable sale, the balance is divided between the spouses. If the proceeds of the sale are insufficient for covering the full amount of the loan, the remaining debt must be repaid by both spouses unless otherwise agreed with the creditor.
- Scenario 3. There can also be a third scenario when the ownership of the dwelling and the home loan can also be transferred to one of the spouses if he/she has sufficient income and the creditor agrees to such scenario. The other spouse may gift a part of the loan covered before the division of the property, or ask for monetary compensation.
- Scenario 4. Under this scenario, ownership of the dwelling passes to one spouse, but both spouses are obliged to repay the loan. In most cases, the dwelling remains with the spouse with whom the minor child or children live and his/her income is insufficient to repay the loan.
It is important to note that if scenarios 2, 3 or 4 are chosen, the creditor's approval will be required.
Details of how to obtain the creditor’s consent and/or other necessary approvals of the creditor are set out in the table below.
|
Where to apply |
What documents to submit |
Swedbank’s actions |
Service price |
|
The mortgaged property is sold by mutual agreement, covering the balance of the loan in full
|
Submit a request in your internet bank: 'Contact us' -> 'Write to us' -> 'Request a bank reference -> 'Reference /Permission about mortgage loans'; or send us a bank message: ‘Contact us’ -> ‘Write to us’ -> ‘Write a message’. |
A request for sale of the property should be submitted. |
Upon receipt of your request, we will prepare a consent to sell the mortgaged property on condition that the funds received will be used to cover the loan in full. |
fees |
|
The mortgaged property is sold by mutual agreement, and the sales price of the property is insufficient for covering the balance of the loan in full
|
Submit a request in your internet bank: 'Contact us' -> 'Write to us' -> 'Request a bank reference -> 'Reference /Permission about mortgage loans'; or send us a bank message: ‘Contact us’ -> ‘Write to us’ -> ‘Write a message’. |
A request for sale of the property should be submitted.
In addition, an application for an amendment to the agreement must be completed in the prescribed form, including details of your income, liabilities and other relevant information.
|
Upon receipt your request, completed application form and other relevant information, we will take a decision.
If the decision taken is positive, we will prepare consent to sell the mortgaged property. We will also prepare an arrangement to the loan agreement on the terms and conditions of repayment of the loan balance.
|
fees
|
|
The marriage is dissolved at the notary’s office and the notary requests the submission of the bank's consent / approval
|
Submit a request in your internet bank: 'Contact us' -> 'Write to us' -> 'Request a bank reference -> 'Reference /Permission about mortgage loans'; or send us a bank message: ‘Contact us’ -> ‘Write to us’ -> ‘Write a message’. |
A draft agreement on consequences of divorce should be submitted.
Also, contact details of the notary who requests the submission of the certificate should be provided.
|
Upon receipt of the draft agreement on consequences of divorce and the notary’s contact details, we will prepare a certificate about existing liabilities and confirm that we do not object to continuing the fulfilment of the aforementioned liabilities in the manner provided for in the agreement(s); or we will indicate how the terms and conditions of the agreement(s) should be adjusted.. |
fees |
|
The marriage is dissolved in court and a proof that you have informed the creditor of the divorce proceedings is required
|
It is not necessary to order a certificate.
The court may be provided with the following evidence:
- An automatic reply from mailbox of Swedbank, AB;
- A receipt of a registered postal item;
- The bank’s stamp (‘Received’ and signature) on the submitted documents if you bring them to the bank’s branch.
|
A draft agreement on consequences of divorce should be provided. |
- |
- |
|
The ownership of the dwelling and the home loan are transferred to one of the spouses if his/her income is sufficient
|
Submit a request in your internet bank: 'Contact us' -> 'Write to us' -> 'Request a bank reference -> 'Reference /Permission about mortgage loans'; or send us a bank message: ‘Contact us’ -> ‘Write to us’ -> ‘Write a message’. |
A request for the loan transfer and disposal of the part of the property to one of the spouses should be submitted.
Also, an application of the established form should be completed for the loan transfer to one of the co-borrowers. The application should include the data about available income, liabilities and other relevant information.
|
Upon receipt your request, completed application form and other relevant information, we will take a decision.
If the decision taken is positive, we will prepare an arrangement to the loan agreement on withdrawal of one of the co-borrowers from the obligation. It will be necessary to apply to notaries for amendment to the mortgage agreement resulting in additional costs of payment for the notary’s services.
|
fees |
|
Both spouses remain co-owners and co-borrowers and have to repay the loan together after the divorce
|
No need to apply to the bank. |
- |
- |
- |
|
The ownership of the dwelling passes to one spouse, but the loan must be repaid by both spouses
|
Submit a request in your internet bank: 'Contact us' -> 'Write to us' -> 'Request a bank reference -> 'Reference /Permission about mortgage loans'; or send us a bank message: ‘Contact us’ -> ‘Write to us’ -> ‘Write a message’. |
A request for transferring a part of the mortgaged property to one of the co-borrowers should be submitted. |
Upon receipt of your request and other relevant information, we will take a decision.
If the decision taken is positive, we will prepare consent to transfer the mortgaged property. In addition, we will prepare an arrangement to the loan agreement and an amendment to the mortgage bond which will have to be signed at the notary’s office.
|
fees |
|
Spouses disagree on divorce, divorce proceedings / legal disputes are pending
|
If you need certificates or consents, submit a request in your internet bank: 'Contact us' -> 'Write to us' -> 'Request a bank reference -> 'Reference /Permission about mortgage loans'; or send us a bank message: ‘Contact us’ -> ‘Write to us’ -> ‘Write a message’. |
In your request, provide detailed information and supporting documents reflecting the situation. |
Depending on the individual situation, responses, certificates, etc., may be prepared. |
fees |
If you are facing financial difficulties – read more here.
If you have concluded a lease agreement and, after the divorce, you want to change its terms and conditions, i.e. to modify the obligation from a joint and several (where you are co-borrowers or a surety for each other's obligations) to a personal one, or to replace one of the spouses with the other one, you will have to submit an appropriate request to the leasing company and obtain its consent for making the changes you want. You will need to fill in the application form by logging in to Swedbank Internet Bank: ‘Loans, lease’ -> ‘Car lease’ -> ‘Complete an application’.
Upon receipt of the divorce documents and the application, we will assess the solvency of the person who remains under the obligation and his/her ability make all payments under the lease agreement, and will take a decision accordingly. If the decision is positive, we will issue consent.
Modification of an obligation is treated as an amendment to the terms and conditions of the agreement and is charged a fee at the applicable fees.
Please note that in order to avoid adjustments to documents, you should correctly discuss the matter of division of the leased property in the divorce documents. We would like to point out that the property purchased under the lease agreement does not belong to you until all obligations under the lease agreement have been fulfilled,, and therefore the object of the lease agreement, i.e. a car or other motor vehicle, cannot be awarded to you as a personal property upon divorce. Therefore, when you divorce, you should determine to whom the property rights to the particular property held by Swedbank lizingas, UAB by right of ownership under the lease agreement, but not the title to the property itself, will pass on. For example:
“Property rights to the property __________ held by Swedbank lizingas, UAB by right of ownership under the lease agreement ___________ shall pass on to ____________, who will acquire the title to the property upon fulfilment of the obligations under the lease agreement.”
Securities or accumulated financial resources are also divided, either by court decision or by agreement between the parties. It may be decided that one spouse will receive the property of one type and the other spouse – the property of another type.
There is also another way of dividing financial assets when one of the spouses gets all accumulated financial assets and pays the other spouse financial compensation for his/ her share.
It is important to know that financial assets include both funds accumulated under insurance contracts and pensions accumulated in Pillar III funds. In the event of divorce, one spouse can ask the court to recognise his/her right to half of the funds. As the insurance or pension contract is not normally terminated on divorce, one spouse may be obliged to compensate the other for the corresponding share of the funds accrued in the contract.
Ex-spouses need to consider carefully not only how assets will be divided, but also how liabilities will be met after the divorce and thus they will have to share the debts.
In marriage, both assets and liabilities are community property, and, therefore, they are also divided. The divorce does not relieve the spouses of their joint obligations to creditors, unless the creditor agrees that the financial obligations rest upon one spouse only.
Financial liabilities without pledging assets, such as consumer credits, are generally smaller and can therefore be more easily repaid or re-divided. However, they should not be pushed aside hoping that the situation will resolve itself and the spouse who has been fulfilling these financial obligations will continue to do so. If these issues are not resolved, a situation may arise where both ex-spouses do not make loan repayments expecting that it is the obligation of the other spouse.
The debtor who has fulfilled a joint and several obligation shall be entitled to recourse against all other joint and several debtors in equal shares to the extent of the obligations fulfilled by him/her, after deducting his/her own share, unless otherwise provided by law or contract. What one of the joint and several debtors fails to repay as a result of his/her insolvency to the debtor who had discharged the joint and several obligation shall be equally shared by the other joint and several debtors, unless their shares of the debt are unequal.
If you are unable to make your repayments under the terms and conditions of the agreement, we will deal with the situation individually. For example, various changes may be made to the terms and conditions of the agreement (deferring instalments, extending the agreement term, or making other necessary modifications to the agreement).
In that case, you will need to fill in an application of the prescribed form for amendment to the agreement, in which you will need to provide information about your current income, liabilities and other relevant information.
You can fill in the application form by logging in to Swedbank Internet Bank: ‘Loans, leasing’ -> ‘Obligations’ -> ’My contracts’.
Read more about how to deal with loan repayment difficulties.
If the marriage is dissolved in court, you must provide the court with proof that you have informed the creditor of the divorce proceedings. The court will accept as evidence:
- an automatic reply from mailbox of Swedbank, AB,
- a receipt of a registered postal item,
- the bank’s stamp (‘Received’ and signature) on the submitted documents if you bring them to the bank’s branch.
When marriage is dissolved at the notary’s office and the notary requires the submission of the bank’s consent / approval, we prepare a certificate on the existing liabilities and confirm that we do not object to continuing the fulfilment of the specified liabilities in the manner provided for in the agreement(s).
The bank's consent is mandatory if, upon divorce, you intend to modify the terms and conditions of the credit agreement(s) you have concluded, i.e. to modify the liability from joint and several to personal liability.
The court may also, on its own initiative, require providing the bank's response to your request or claim.
If the marriage is dissolved at the notary's office, the bank is not obliged to inform you that it does not object to the terms and conditions of the agreement – on the contrary, the bank must only inform the notary and you if the bank is not satisfied with the terms and conditions of the agreement.
As a general rule, when the terms and conditions of the agreement are inappropriate, or when we receive an agreement that is completed not in full or incorrectly, we will contact you to discuss the points that need to be corrected, and after shortcomings are eliminated and the corrected agreement received, the problem will be resolved.
The Civil Code of the Republic of Lithuania provides for a uniform procedure for informing the creditor both in court and through a notary, i.e. when the agreement on the consequences of divorce deals with the division of the spouses' property, which is the spouses' community property, the spouses have to inform all known joint creditors of both spouses or of only one of them, prior to applying to the court or a notary for the approval of this agreement.
This notification should be accompanied by a draft agreement on the consequences of divorce or a draft claim, as well as by the contact details of the notary who is to be approached for notarisation of the agreement.
The divorce documents have to be submitted to the bank. Where according to the notarised agreement it is necessary to amend the terms and conditions of the loan agreement or if you need an advice, you can register for consultation.
Please note that Swedbank, AB, legal entity code 112029651, and Swedbank lizingas, UAB, legal entity code 111568069, are separate and different legal entities, so in order to avoid correcting the documents, you must make sure that the creditors are correctly indicated in the divorce documents:
- if you have the loan agreement(s), you need to indicate the institution that granted the loans, i.e. Swedbank, AB;
- if you have the lease agreement(s), you need to indicate the leasing company, i.e. Swedbank lizingas, UAB.
If any unanswered questions remain, you can ask them by sending a message via the Internet Bank message or calling via phone number +370 5 268 4444 of Swedbank.