The solidarity loan requested by a married couple and that only benefits one of the spouses must be paid exclusively by the person who has used it, provided that the couple is covered by the separation of property regime.
The Provincial Court of A Coruña gives the reason in an appeal resource (whose sentence can be consulted here) to a woman who had to pay a loan requested by her ex-husband to finance their businesses and who must now repay his ex-wife in full.
The events occurred in 2014 when a couple under the regime of absolute separation of property requested a loan of 18,000 euros to finance two construction companies of the husband. In 2016, the dissolution of the marriage was declared by divorce.
Once the non-payment of the repayment installments of the loan occurred, the bank obtained from a court the order of execution of the couple's assets, being the ex-wife the one who paid the financial entity 12,000 euros to settle the debt executed by Justice.
The woman sued her ex-husband who recognized his obligation to pay half of the debt, 6,000 euros. The Court of First Instance 2 of Betanzos dismissed the claim by ruling that both spouses "subscribed to the loan jointly and severally, the purpose of the loan being indifferent, for which both respond equally."
The magistrates of A Coruña, after processing the appeal, analyze the legal conflict between the ex-partner. If they must attend to the interests of the ex-wife, who maintains that the entire debt must be assumed by her ex-spouse, since the money obtained from the loan was used entirely to satisfy the financing needs of her two construction companies of which she was its only administrator and partner. Or if, on the contrary, the ex-husband is right who argues that the debt should be considered egalitarian because a company was financed from which the income with which the family was sustained was obtained.
no common property
The sentence finally agrees with the ex-wife when considering that the loan to finance the companies of which one of the spouses is the exclusive partner and administrator "cannot be considered a burden of the marriage." In addition, the magistrates underline, when there is a regime of separation of assets, there is no link to the common heritage "because there are no such common assets."
In this case, there is the investment of common money –from a solidarity loan– in a private property, so it must be returned in full by the ex-husband, who is the one who benefits from the financing. To reach this conclusion, the magistrates consider that if the two construction companies had increased their value, the ex-wife would not obtain any return, "so she should not bear the damage" for an unpaid loan.
The ruling concludes that "the loan was requested for the exclusive benefit of the ex-husband, so he must assume the entire debt."
Supreme Court jurisprudence
The magistrates interpret the jurisprudence of the Supreme Court that regulates the action to claim from the joint and several debtor who pays the debt in full -in this case the ex-wife- and which is included in article 1,145 of the Civil Code: "the one who made the payment can only claim from their co-debtors the part that corresponds to each one, with the interest on the advance”.
The courts consider that the action of return or claim is different from subrogation. When only one of the joint and several debtors pays the total amount owed, there is no subrogation or change of ownership by him in the credit, but the loan is extinguished.
To avoid undue enrichment, article 1,145 of the Civil Code grants a right of repetition to claim from each of the co-debtors the part that corresponds to them and the interest on the advance. But the solidarity that governs external relations (against the creditor bank) does not apply to internal relations between debtors (in this case a couple with separation of assets). Among them governs a commonwealth regime (in which they do not respond equally but proportionally to their participation).
In the sentenced matter, the fact that both spouses had become joint and several debtors against the bank does not mean -according to the magistrates- that the internal relations between them "necessarily have to be equal, but that the nature of the debt must be taken into account", which is subject to the regime of separation of assets.