Personal loans and property communion : how does it work? The question is not irrelevant for the purpose of repaying debts, so that a credit institution or financial company always evaluates very carefully whether the spouses or the sole owner of the conjugated loan is in a regime of separation or communion of assets: the information it is decisive not only for the assessment of the actual patrimonial status of the applicant or of the applicants, in case the claim is submitted by both spouses, but also to evaluate further guarantees in case of insolvency due to non-payment of installments. And just before the debt situation we want to focus our attention on the communion of assets and personal loans , observing what are the provisions of the civil code and the various possible cases.
- What the civil code provides
- Personal loan payable to both spouses
- How does the loan for a single spouse with a communion of assets work?
- What is part of the communion of goods
- The documentation to be presented
What the civil code provides
Let’s see what the Civil Code provides in the case of a personal loan with the communion of assets for the holder of the loan : to settle the issues with this property regime is the rule of art. 159: As we have anticipated for a bank or financial institution, the communion of assets is linked to the assessment of the impact on the applicant’s assets, a figure that influences the sum that can be provided through financing. In this phase of evaluating the applicant’s financial profile, the credit institution evaluates all the possible options in terms of protection, thus also informing on which movable and immovable assets may be revalued in case of insolvency of its client, on the basis of what is provided for the risk policies of your institution.
Precisely for this reason, financial companies tend to favor, where possible, the stipulation of the loan agreement by both spouses, thus having the possibility to protect themselves more, being able to attack, in the event of insolvency of the client, the assets in communion of both spouses .
Personal loan payable to both spouses
We start from a first case of school, or if the personal loan is payable to both spouses: for this case it makes no difference that the couple is in communion or separation of assets because, in case of marital separation, both are jointly and severally liable to the repayment of the capital provided and the interest , and in case of non-payment of the installments, both would be reported in Crif as well as to meet the possible foreclosure of the assets owned.
Then there is the special case in which the debts are contracted by a spouse separately, but in the family interest : in this case the spouses answer first with the goods of the communion, and then with the personal ones, according to what is prescribed by ‘art. 191 of the civil code. The creditors first can claim on the assets belonging to the communion, and only if they prove insufficient to the complete balance of the debt would come into play the assets of only the spouse who has contracted it. If all this is not enough, the creditors could also attack the assets of the other spouse, but up to a maximum of half of the credit .
How does the loan for a single spouse with a communion of assets work?
The most particular case of our analysis are the loans with communion of goods in which the current loan is payable only to one of the two spouses: the payment of the current loan is up to the holder’s spouse, however, if in the next phase of separation or divorce the assets are divided, the problem arises in the case of insolvency, as the assets in communion they can be attached because they are considered the property of both spouses. For the spouse not in charge of the personal loan in any case, there is the possibility of claiming its share of the assets in communion or the portion of the proceeds from the auctioning of the aforesaid goods, since it is not responsible for the non-payment. The case is different
the separation of assets , since the two spouses appear completely separate from the point of view of assets, and the personal loan must be repaid only and exclusively by the holder. The separation of assets therefore implies that, in the case of non-payment, only the assets of the holder of the loan they can suffer foreclosures.
What is part of the communion of goods
Article 177 of the Civil Code explains which assets are part of the communion. In detail it provides:
- Goods purchased together or separately during the marriage
- Income from the property of each of the spouses, received and not consumed upon the dissolution of the communion , such as revenues from renting an apartment owned by one of the two spouses before the marriage contract
- Income from companies managed by both spouses established after marriage
- In case the companies belong to only one of the spouses before the marriage, but they are managed by both, the communion has vigor on the profits and the increments
- Income from the separate activity of each spouse and not consumed upon the dissolution of the communion, such as salaries and professional fees
Recall that unlike the regime with the separation of assets, in which each spouse responds to the obligations assumed only with their assets, the communion of assets provides that any goods purchased by each spouse, even separately, is to be considered as property also of ‘ another, coming rightfully into the communion.
The documentation to be presented
Which documentation to present in case of personal loan with communion of goods ? Generally, the bank requests the following documents from the spouse in communion regime:
- The subscription by co-obligation of the other spouse
- The acceptance of both to the derogation of the art. 190 cc
This exemption to be undersigned represents an authorization which expressly certifies the possibility that the financing body may act primarily and not as a subsidiary of the personal property of each of the spouses. However, if the spouse of the requesting party does not want to be involved in this way in the loan, he can exercise another option to give the next green light for disbursement to the bank, or a simple guaranty . It should be clarified by intellectual honesty that not all credit institutions accept this solution , since in this case the financial institution could only seize the personal property of the spouse entrusted and the personal property of the guarantor, but not those of the communion, which would be eligible only in the alternative and with priority reserved for the creditors of the communion.
The solution preferred by the bank as we said is that in which the loan application is advanced by both spouses , because in this way the bank becomes a creditor of communion without anything else to complain, and in case of failure to pay the installments the personal assets spouses would be distraught, even if only later.