When your family structure changes in the event of a divorce, your eligibility to keep your flat may be affected. In this article, we address some of the more commonly asked questions on how such changes may affect you.
What happens to my HDB flat when I divorce? Can I retain the HDB flat after the divorce? What if I do not meet HDB’s eligibility criteria to retain my HDB flat after divorce?What if I divorce before the minimum occupation period (MOP) of my HDB is met? Can I kick my spouse out of the HDB flat?
What happens to my HDB flat when I divorce?
A) If you and your spouse reach an agreement about what should be done with the HDB flat after the divorce
In the most ideal situation, parties will agree on what happens to the flat – whether one party should transfer his or her share to an eligible party together with other agreed terms, or whether the flat should be sold and the proceeds be divided in an agreed percentage between the parties.
Where there is such an agreement is reached it can be recorded as agreed terms in the divorce documents.
B) If parties do not agree on what should happen to the HDB flat and leaves it to the Court to decide
If parties cannot agree on how the HDB flat shall be divided, parties would then need to submit their respective positions to be presented to the Court during an ancillary hearing.
The Court will decide if the HDB flat should be defined as a “matrimonial asset” and subsequently whether or not it should be included in the pool of assets for division.
The Court will then decide on each party’s share of the matrimonial assets to ensure that the division is just and fair.
Step 1: The Court will first consider whether or not the HDB flat is a ‘matrimonial asset’
Under the Women’s Charter, “matrimonial assets” include all property acquired during the marriage. Generally, properties acquired prior to the marriage are not matrimonial assets, unless they are ordinarily used by the family or substantially improved by one or both parties.
Assets acquired by way of “gifts” or “inheritance” are not “matrimonial assets” unless they explicitly refer to the “matrimonial home”, or are assets that have been substantially improved by one or both parties.
Step 2: If the HDB is a ‘matrimonial asset’, it will form part of the ‘matrimonial pool’ which will be divided between parties
If the HDB is a “matrimonial asset”, the Court has the power to order the division of matrimonial assets in a ‘just and equitable manner’. Some factors that the court will consider in arriving at a just and equitable division include:-
- Extent of the Contribution by the Parties This includes both financial contributions (also known as direct contributions), or non-financial contributions (indirect contributions). Indirect contributions include maintaining the shared property (by cleaning or repairing, etc), the extent of the contributions made by the parties to the welfare of the family, including taking care of the household or caring for the family or any aged or infirmed relative or dependent of either party, as decided in case law, and the giving of assistance or support which aids the other party in the carrying on of his or her occupation or business.
- The needs of the Children of the Marriage The Court will take into account the needs and welfare of the children of the marriage, and to whom the care and control of the children have been given.
- Agreements between the Parties prior to Divorce The Court will also take into consideration agreements made between the parties prior to the divorce. One example of such an agreement includes pre-nuptial agreements.
- Financial Independence of Parties after Divorce The Court will take into consideration the working abilities and earning capacity of the parties in dividing the matrimonial assets.
- Debts undertaken by Parties Debts undertaken by parties towards the joint benefit of both parties, or for the benefit of any child of the marriage, would be also considered by the Court in division of matrimonial assets.
- Other Considerations This can include financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future. It also includes the standard of living enjoyed by the family before the breakdown of the marriage, age of each party to the marriage and the duration of the marriage, any physical or mental disability of either of the parties, age of each party to the marriage and the duration of the marriage; and the value to either of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage that party will lose the chance of acquiring.
After consideration of the factors above, the Court will decide the percentages of the proceeds of the sale of the property that each party should receive. This is a complex process and experienced family lawyers are able to assist you by giving you advice in view of the specifics of your case.
Step 3: If the HDB is not a ‘matrimonial asset’
If the HDB flat is not a ‘matrimonial asset’, it will not form part of the ‘matrimonial pool’ and will not be divided between the parties.
Can I retain the HDB flat after the divorce?
First of all, if the HDB flat has not been fully paid up yet, the party who intends to retain the flat must also successfully obtain the bank’s approval for the loan to be paid. Several criterias must be met in order for one to retain the HDB flat after divorce. We have set out several of them below
A) You have custody, care and control over the children
If you have custody, care and control over the children, you are able to take on the home loan for the HDB flat if the flat is not fully paid back yet, and you are divorced (this does not include annulment of marriages), you are eligible to retain the flat.
B) You are eligible under the Single Singapore Citizen Scheme
If you are a Singapore Citizen, at least 35 years old, and your HDB flat is a resale flat purchased from the open market without the CPF Housing Grant for Family, you may be eligible to retain the flat.
If you do not meet the eligibility criteria above, you cannot retain the HDB flat. If the flat has reached the Minimum Occupation Period (MOP), the HDB flat can be sold in the open market, and proceeds of the sale will be divided between the parties in the respective percentages according to the Order of Court.
What if I divorce before the minimum occupation period (MOP) of my HDB is met?
In general, the MOP is calculated from the date that the sellers collect the keys to the flat. For flats purchased directly from the Housing and Development Board (“HDB”), the MOP is 5 years from the date of the key collection of the flat. Parties may agree for either one to retain the flat, make an appeal to HDB to sell the flat in open market, or surrender the flat to HDB.
For more details visit our article on what happens if you divorce before the MOP of your HDB flat is made
Can I kick my spouse out of the HDB flat?
Technically, if your spouse is a joint tenant with you in the property, you cannot exclude your spouse from the house as he or she is also a legal owner of the house.
However, if you believe that you are experiencing domestic violence, you apply for a Domestic Exclusion Order (“DEO”). The Court may make a Personal Protection Order (“PPO”) upon satisfaction that family violence has been committed or is likely to be committed against a family member and that it is necessary for the protection of the family member.
This Order restrains the person against whom the order is made. Under the range of available protective orders in a PPO, the DEO serves to exclude or restrict the respondent from entering the victim’s residence or parts of it.
The suitability of the options above for you depends on the specific circumstances of your case. Our Divorce Lawyers will be better able to guide you through the process with knowledge on your specific circumstances. For more detailed advice on legal options regarding your flat and important factors to consider when making a decision for the best option for you, you can contact our Divorce Lawyers.
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When you contact our matrimonial law team, we will provide you with a consultation, tailored to your specific circumstances and goals in mind.
Our goal is to help you find a resolution that works for you.