When people divorce most probably their properties get affected, exceptionally their HDB flat. What exactly happens to them?
The property owned in conjunction with both spouses will probably be the asset that will be equally divided. This article gives an overview of the consequences associated with divorce focusing on what will happen to ones HDB flat and if one can retain it.
After Divorce, What Happens to the HDB Flat and How is it Decided?- Spouses will agree on what will happen to the HDB flat when they divorce.
Spouses are given the freedom to agree on what to occur with regards to HDB Flat in case they divorce.
For instance, some couples may agree that in case there will be divorce, they will transfer the interest earned in the HDB Flat to their partner and the other one retains the flat. Some may agree to auction their flat and divide the amount in an agreed proportion and share.
Every agreement concerning the Flat will be recorded and stored in a court judgment in the hearing of ancillary matters. On the other hand, if the spouses are not able to reach an agreement on what should happen when a divorce occurs, it’s at the mercy of the court to decide for them when sharing spouses’ marital assets.
It is up to the court to make a decision on what will happen to the HDB flat in case there is divorce
In the process of divorce, the court divides all the matrimonial properties that the spouses have failed to agree upon what needs to happen after a divorce.
Is the HDB flat a matrimonial asset?
It is most likely that your HDB flat is a marital asset and therefore will be shared after divorce.
According to the Women’s Charter, matrimonial assets refers to any property of any nature that is attained in the course of marital by a single or mutually partners. In case it was before marriage by one partner or both, it will only be considered matrimonial under the following circumstances:
- The property is generally enjoyed or used by both partners or by their children while they are both living together for household, transportation, shelter, recreational, education, aesthetic or social functions; and
- The property has been improved substantially when the two are married by both parties or one to the marriage.
In case the HDB flat was inherited from one of the parents of a spouse after passing away or was acquired before marriage through a gift from a member of the family, it will initially not be considered a matrimonial asset.
It can, however, become a matrimonial property if it becomes a matrimonial home or if the inheritance/gift becomes enhanced or improved substantially during marriage by the other partner or both of them.
It is worth noting that one partner cannot claim that he or she has an interest in an HDB flat that the other partner owns simply because they were married to each other. He/she will only have an interest if the flat is categorized as a matrimonial asset according to the Women’s Charter.
How will the HDB flat be divided if it’s a matrimonial asset?
In the course of dividing matrimonial assets, the court will decide on the HDB flat as well. The following are examples of orders the court can make:
- It may order the selling of the flat and divide the proceeds in certain proportions between the parties.
- It may require a spouse to transfer their interest in the HDB flat to the other partner.
It is not necessarily that matrimonial assets will be shared equally. For instance, in case the marriage was short, the court may prefer to divide its assets based on their respective contributions financially on the purchase of the asset.
The court considers various factors to make its decision, check with a divorce lawyer for more details.
Will You Be Able to Retain the HDB Flat after Divorce if You are Entitled to Retain it?
Based on the above discussion, we can summarise that one can retain the HDB flat after divorce if:
- The court makes an order for the other spouse to transfer their interest in the HDB flat if both of you are not able to agree on what to happen after a divorce.
- The other spouse agrees to transfer their interest in the HDB flat to you.
The above, however, does not mean you will get to retain the flat due to a reason that one has to meet the HDB flat’s conditions for eligibility.
For instance, you will have to fall into one of these situations:
First Situation: You have control and care of your children
In case you have power and care over your children, you will keep the HDB flat.
Furthermore, you should have the financial ability to take on the loan of home for the flat.
Second Situation: Under the Single Singapore Citizen Scheme you are eligible
If the marriage has not born any child, the HDB flat can still be kept under this scheme if you are:
- A citizen of Singapore
- 35 years old and above
- The HDB is a resale flat that was bought from with no CPF Housing Grant for Family.
If the flat was purchased from HDB directly, or the resale flat was purchased with CPF Housing Grant for family, one must comply with the five-year Minimum Occupation Period before one can keep the flat under the Single Singapore Citizen scheme.
If one cannot satisfy the MOP, he or she can include another individual to keep the HDB flat with. This is however subject to requirements of HDB.
What if You do not meet the requirements and the mentioned situations to retain your HDB Flat on divorce?
If one does not meet the requirements and conditions as discussed above, he or she needs to dispose of their HDB flat after their divorce. For instance, if the partners have completed the five-year MOP, then they may sell the HDB flat.
However, if the requirements are not met, the partners have to give back the flat at the compensation of the price that is prevailing subject to the approval of HDB.
How will the sale proceeds from the selling of HDB Flat be shared?
The framework that is used in sharing of the sales of the flat is the same as the sharing of the fat itself.
In general, both parties can agree on the proportions while sharing the flat. However, if one of the parties disagrees, the court will make the final decisions based on:
- Whether the proceeds of the sale are considered matrimonial
- The factors that will be used in determining the divide proportion should be
Considering one case where a husband had contributed financially much more to the buying of their matrimonial home (HDB flat) by cashing in 80% of the total buying price while the rest was provided by the wife. The two were married for 18 years.
Basing on the contribution ratio, it does not mean that the husband will get 80%bof the sale proceeds. The court was able to take into account contributions that are nonfinancial of the wife, for instance, her caring for the family and looking after the home. The court then gave the wife due credit for this case.
Furthermore, the court considered the long marriage of this couple, lasting 18 years, alongside the wife’s payments for clothes for children, furniture, and expenses on family items.
Eventually, the court ordered that the sale proceeds be shared on the ratio of 60:40, 60% for the husband and 40% for the wife.
Instead of Divorce (Upon Annulment of Marriage) what Happens to Your HDB Flat?
If the marriage has been annulled or is void, for instance, the non-consummation marriage, spouses may have to dispose of the flat.
There is an exception in case the fathers of the whichever sides were recorded originally in the claim to purchase the HDB flat. If not, one may have to return the HDB flat at the prevailing price of compensation subject to HDB’s approval.
The most important thing after divorce is what will happen to HDB flat since its regarded as a marital asset. Spouses may agree upfront in case divorce happens what will happen, and this will be recorded and store. If not, the court may decide, based on some factors, who will retain the flat and if they should sell it and divide the proceeds and in what proportions.
This information is not intended as, and should not be taken as, legal advice.