Олександр Сич
July 27, 2026
Short answer. A flat purchased with a mortgage during the marriage is the joint property of the spouses and is divided equally; the debt on the loan is also divided equally (regardless of whose name the mortgage is in). The fact that the flat is subject to a mortgage does not prevent its division — this has been confirmed by the Supreme Court. The main condition is that the mortgage-holding bank must be involved in the case as a third party; otherwise, the court’s decision will be overturned. There are three ways to divide the property: to leave the property with one spouse and provide compensation to the other, to sell it and divide the proceeds, or to continue repaying the mortgage jointly.
A mortgaged flat is one of the most complex assets to divide in a divorce, as three parties are involved: both spouses and the bank. Many people mistakenly believe that as long as the mortgage is outstanding, the property cannot be divided, and that the bank is generally opposed to any changes. In fact, the law and case law are clear: a mortgage does not prevent division. Let’s examine exactly how such a property is divided, what happens to the debt, and what options the spouses have.
Can a flat that is still subject to a mortgage be divided?
Yes. A flat purchased during the marriage is the joint property of the spouses (Article 60 of the Family Code), regardless of whether it is pledged to the bank. The Supreme Court has explicitly stated in its case law: The Law ‘On Mortgages’ does not prohibit the ownership or use of property pledged as collateral, and the division of joint property does not constitute a disposal of that property — after all, at the time the flat was pledged as collateral, it already belonged to the spouses as joint property. Consequently, the fact that the property is subject to a mortgage does not prevent its division and does not infringe the bank’s rights.
This means that it is not necessary to wait for the loan to be repaid in full in order to divide the flat. Division is possible even whilst the mortgage is in force — provided the formalities are correctly completed.
Why the bank must be involved in the case
This is a key procedural requirement that cannot be ignored. As the decision to divide a mortgaged property concerns the rights and obligations of the mortgagee, the bank must be involved in the court proceedings as a third party. The logic is simple: when the property is divided, new parties to the loan obligation emerge, of whom the bank must be aware, as this affects its ability to recover the debt and foreclose on the mortgaged property.
The consequences of failing to comply with this requirement are serious: if the court decides the fate of a mortgaged flat without involving the bank, such a decision may be overturned on appeal or cassation. Therefore, a properly drafted claim must include the bank as a party to the proceedings.
What happens to the loan debt
The mortgage debt is divided along with the flat. A loan taken out during the marriage to purchase a home for the family is considered a joint obligation of both spouses — regardless of which of them signed the loan agreement. The Supreme Court has repeatedly confirmed that the debt obligations under such a loan are shared by both.
Practical conclusion: you cannot claim half of the flat whilst leaving the entire mortgage to your former partner. The asset and the debt go hand in hand. If, following the division of property, one spouse repays the joint loan on their own, they are entitled to claim compensation from the other spouse for the corresponding portion of the amount paid — by way of a claim for reimbursement (recourse).
Three ways to divide a mortgaged flat
In practice, one of three options is used. Common to all: any change of borrower or sale of the collateral requires the bank’s written consent.
| Method | How it works | What to consider |
|---|---|---|
| One party retains the property + compensation | The flat and the remaining debt pass to one party; the other receives financial compensation for their share | The loan must be re-registered in the name of a single borrower — subject to the bank’s consent |
| Sale and division of proceeds | The property is sold; the outstanding loan is repaid first, and the remainder is divided equally | The simplest option when neither party wishes to keep the flat |
| Joint repayment continues | Both remain co-owners and borrowers, continuing to repay the loan; the division takes place after the loan is paid off | Risky: a delay by one affects both |
If the mortgage was taken out before marriage
A different rule applies here. If the flat was purchased with a mortgage before the marriage was registered, it is deemed to have been acquired using the personal funds of the person who entered into the agreement and is their personal private property (Article 57 of the Family Code). The obligation to repay the loan also remains with the person who took out the mortgage.
However, the fact that the other spouse makes some of the repayments on such a loan during the marriage does not in itself make them a co-owner of the flat. However, if the value of the property has increased significantly using joint funds (through repairs or renovation) or a substantial portion of the loan has been repaid using joint funds, the other spouse may claim compensation under Article 62 of the Family Code. This must be substantiated by documents detailing the amount and source of the contributions.
Division by agreement or through the courts
Like any other property, a mortgaged flat can be divided in two ways. If the spouses reach an agreement, a property division agreement is drawn up, which must be notarised (Article 69 of the Family Code) — this is quicker and cheaper. If there is no agreement, the dispute is resolved by the court: it determines the composition of the property, the size of the shares, involves the bank and sets out the procedure for division. The court fee amounts to 1 per cent of the value of the claim (the value of the share claimed by the claimant), within the range of 0.4 to 3 times the minimum subsistence level.
Common mistakes when dividing mortgaged property
- Ignoring the bank. Attempting to divide a flat without involving the mortgagee will result in the decision being set aside.
- Dividing the asset without the debt. Claiming half the flat without assuming part of the loan has no legal prospect.
- Verbal agreements with the ex-spouse. Without a notarised agreement or a court ruling, they are not legally binding.
- Delay. Following a divorce, the limitation period is three years, and failure to repay the loan in the meantime damages both parties’ credit history.
- Independent re-registration without the bank’s consent. Changing the borrower without the bank’s involvement is not possible.
Questions and answers
Can an apartment be divided if the mortgage has not yet been paid off?
Yes. The fact that the apartment is mortgaged does not prevent it from being divided — this has been confirmed by the Supreme Court. There is no need to wait for the loan to be repaid.
Who pays the mortgage after a divorce?
The debt on a loan taken out during the marriage for family needs is shared by both parties. The specific repayment arrangements are determined by mutual agreement or a court order.
Why is the bank involved in the case?
The decision on division affects the rights of the mortgagee, so they must participate in the case as a third party. Without this, the decision may be overturned.
Is a flat purchased with a mortgage before marriage subject to division?
No, it is the personal property of the person who entered into the agreement. However, the other spouse may claim compensation if they can prove substantial joint contributions (Article 62 of the Family Code).
Can a mortgaged flat be sold during a divorce?
Yes, with the bank’s consent. Usually, the proceeds are first used to pay off the outstanding balance of the loan, and the remainder is divided between the spouses.
Can the mortgage be transferred to one of the spouses?
Yes, but only with the written consent of the bank, which assesses the creditworthiness of the new sole borrower.
How much does it cost to file a claim for the division of a mortgaged flat?
The court fee is 1 per cent of the value of the claim, ranging from 0.4 to 3 times the minimum subsistence level for able-bodied persons.
What should you do if your ex-partner is not paying the joint mortgage?
The person who repays the loan on their own has the right to claim compensation from the other party for the portion paid on their behalf, by way of recourse.
Sources
- Family Code of Ukraine, Articles 57, 60, 62, 69, 70 — zakon.rada.gov.ua
- Law of Ukraine ‘On Mortgages’ — zakon.rada.gov.ua
- Supreme Court case law on the division of mortgaged property and joint debts of spouses
Division of a mortgaged flat with the lawyers at ‘Svarog’
The division of mortgaged property involves negotiations directly with your former partner and the bank, where a single error in the claim can result in the decision being overturned. Svarog’s solicitors will assess the situation, coordinate a position with the bank, prepare a contract or claim, and defend your share in court. For more details, see the page on property division solicitors, on solicitors specialising in credit disputes</ a> and in the family law section.
Telephone: +38 095 554-54-24, +38 096 554-54-25. Kyiv, 7 Khoriva Street, Office 2 (Podil). Mon–Fri, 9.00–18.00.