What Happens to Your HDB Flat after Divorce?

Last updated on May 17, 2018

In a divorce, what happens to your property, and more specifically your HDB flat?

The property that you and your spouse share will most likely be the largest asset that has to be divided. This guide will explain the consequences of a divorce, with regard to what happens to your HDB flat and whether you can keep it.

Is Your HDB Flat a Matrimonial Asset to be Divided?

Your HDB flat is most likely a matrimonial asset, which will be divided upon divorce. The Women’s Charter defines “matrimonial assets” to be an asset of any nature acquired during the marriage by one or both parties.

If the asset was acquired before the marriage by only one party, or by both parties, the asset will only be a matrimonial asset if:

1. The asset is ordinarily used or enjoyed by both parties or one or more of their children while the parties are living together for shelter or transportation or for household, education, recreational, social or aesthetic purposes; and
2. The asset has been substantially improved during the marriage by the other party or by both parties to the marriage.

If the HDB flat is a gift from a family member, or inherited from a father who has just passed away, it will not be a matrimonial asset whether or not it was acquired before or after the marriage. However, it will be a matrimonial asset if the gift/inheritance becomes the matrimonial home or if the gift/inheritance has been substantially improved during the marriage by both parties to the marriage or by the other party.

Can You Keep Your HDB flat?

If the marriage is void (due to e.g. the non-consummation of marriage) or has been annulled, you have to dispose of the HDB flat. The exception is if either side’s parents were originally listed in the application to buy the flat.

For other cases of divorce, divorcees can retain the flat in the following situations:

Situation 1: Either parties’ parents are originally listed on the flat application

The party whose parents’ names are on the flat application will retain the flat. If the names of either parties’ parents are not on the flat application, you have to return the flat at the prevailing compensation price, subject to HDB’s approval.

Situation 2: The parties’ children are living with you

The divorced party who has the parties’ children living with him/her will be able to retain the flat. However, as mentioned above, this is still subject to the preliminary requirements, that the marriage cannot be due to an annulment of marriage.

Situation 3: The divorcee is eligible under the Single Citizen Scheme

If the divorced parties have no children, the flat can still be retained under the Single Singapore Citizen Scheme, if the divorced party is:

• A Singapore citizen
• At least 35 years old
• The matrimonial flat is a resale flat purchased from the open market without the CPF Housing Grant for Family

For matrimonial flats bought directly from HDB and resale flats bought with the CPF Housing Grant for Family, the 5 year minimum occupation period must be satisfied before the flat can be retained under the Single Singapore Citizen Scheme.

Other situations: HDB’s Prevailing Conditions and Schemes

For divorcees who do not qualify for the Single Singapore Citizen Scheme, one party can include another person to retain the flat with if it qualifies for HDB’s prevailing schemes.

What If You Cannot Meet the Situations Mentioned Above to Keep Your HDB Flat after Divorce?

If you cannot meet the conditions stipulated above, you have to dispose of your HDB flat upon your divorce.

If you and your spouse have completed the minimum occupation period of 5 years, then both of you can sell the flat on the open market. However, if the period of 5 years has not been met, then the parties have to return the flat at the prevailing compensation price, subject to the HDB’s approval.

Division of Matrimonial Assets

If you have to sell off your HDB flat, then a division of the sale proceeds (the matrimonial assets) will be relevant. It is crucial to understand that the starting point for the division of assets is not an equal division of assets, and the division of assets ultimately depends on numerous factors. It should also be noted that a spouse cannot claim that he has an interest in a property owned by the other spouse simply because they were both married.

Ultimately, what happens to your HDB flat after a divorce depends on how the following factors, as stated in section 112(2) of the Women’s Charter:

• The extent of contributions each party has made in terms of money, property or work towards acquiring, improving or maintaining the matrimonial assets
• Any debt owing or obligation incurred or undertaken by either party for their joint benefit of any child of the marriage
• The extent of contributions each party has made towards the family’s welfare, such as looking after the home or caring for the family or any aged relative dependent on either party
• Any agreement between the parties with respect to the ownership an division of matrimonial assets made in contemplation of divorce, such as the deed of separation
• The assistance given by one party to the other (this can be material or immaterial), including assistance that helps the other party to carry out his job or business
• Any period of rent-free occupation or other benefit enjoyed by one party in the matrimonial home to the exclusion of the other party;
• The child’s needs
• The marriage’s length
• Each party’s financial needs

These factors are not exhaustive. Instead, the court will take all circumstances of the case into account and divide the proceeds from the sale of the HDB flat accordingly.

Case Studies

In one case, a husband financially contributed much more to the purchase of the HDB flat (their matrimonial home) by contributing 80% of the purchase price of the house, with the wife contributing 20% of the price. The couple had been married for 18 years.

The contribution ratio alone does not mean that the husband will obtain 80% of the proceeds. The court took into account non-financial contributions of the wife, such as her looking after the home and caring for the family, and the court gave her due credit in such a case. In addition, the court took into account the long marriage of the couple, which lasted 18 years, along with payments made by the wife for children’s clothes, furniture and other family items.

The court eventually ordered the proceeds of the sale to be divided 60/40, with 60% going to the husband, and 40% going to the wife.

It should be noted that there are instances of the court dividing matrimonial assets equally. The individual circumstances of the case matter, especially the financial and non-financial contributions each party has made during the marriage.

Where the marriage was brief, the courts would prefer to divide the assets according to the parties’ respective financial contributions to their purchase.

Ultimately, the court will try divide the assets in the fairest way possible.

Ref:https://singaporelegaladvice.com/hdb-flat-divorce