According to the Department of Statistics in a report released on 18 July, there were 7,614 divorces and annulments recorded in 2016. Reflected in articles carried by The New Paper, Channel News Asia and The Straits Times, divorce rates are up 1.2 percent from 2015.
Determining ownership of the HDB flat after a divorce or separation
When a couple divorces or separates, the question on everyone’s mind is: what happens to the HDB/BTO/DBSS/EC? Do you have to sell it and divide up the sale proceeds or can one party keep it? The answer varies depending on different scenarios.
Is it a matrimonial asset?
If the HDB flat was acquired by the couple as part of a joint application or under the HDB fiancé-fiancee scheme, then it is a matrimonial asset. This means that in the event of a divorce, like all other assets owned by them, it will be divided between them (as determined by the courts).
If the HDB flat was acquired by one party before marriage or if the flat was an inheritance from a deceased parent of one party, then it is not a matrimonial asset i.e. it does not form part of the assets which must be divided up during a divorce. Under section 112(10) of the Women’s Charter, the flat which is acquired before marriage will only be considered a matrimonial asset if:
- the flat is enjoyed by the couple and their children for shelter, transportation, household, education, recreation, social and aesthetic purposes; OR
- the flat was substantially improved during the marriage, by either or both of them.
Typically, unless you and your ex-spouse managed to have a written agreement on such matters, the court will decide whether the flat should be sold or retained and if so, who should retain the flat and how to divide up the assets.
Divorced with a child or children
If the court has given you an order for custody (care and control) of the child or children of the marriage, you will be considered to have a “family nucleus” and meet one of HDB’s criteria for the retention of the HDB flat. A second requirement is that you must financially qualify to take on the home loan for the HDB flat. Lastly, to retain the property, the divorce cannot be due to non-consummation of marriage or annulment.
Divorced with no children
If you have no children from the marriage, but wish to retain the HDB flat after the divorce, you can do so under the Single Singapore Citizen (SSC) Scheme if:
- you are a Singapore citizen
- you are at least 35 years old
- your 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 or resale flats bought with the CPF Housing Grant for Family, the 5-year Minimum Occupation Period (MOP) must be satisfied before you can retain the HDB flat under the SSC Scheme. Alternatively, you can include another person (like a parent) to retain the flat with, but this is subject to eligibility conditions and schemes.
Sale or surrender of the HDB flat
If neither of you are able to retain the flat, you will have to sell it.
If you have completed the MOP, you can sell the flat in the open market. If you have not completed the MOP, you will have to return the flat to the HDB at the prevailing compensation price.
The sale proceeds will be used to pay off any outstanding mortgage loan and reimbursement to CPF of the amounts used for the purchase of the flat with accrued interest. The remaining balance will be divided between you and your ex-spouse according to the court order for the divorce.
When selling the HDB flat, HDB requires you to produce the following documents:
- Deed of Separation (if you are undergoing a separation) OR
- Interim Judgment (previously known as ‘Decree Nisi’) and Certificate of Making Interim Judgment Final (previously known as ‘Decree Nisi Absolute’)
- Court Order (if any)
How does the court decide who gets how much of the flat?
(A) For Non-Muslims
In a divorce, the court has the power to order the division of assets in a ‘just and equitable’ manner. The court must take into account the following factors set out in section 112(2) of the Women’s Charter:
- the extent of the contributions made by each party in 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 or for the benefit of any child of the marriage;
- the needs of the children (if any) of the marriage;
- the extent of the contributions made by each party to the welfare of the family, including looking after the home or caring for the family or any aged or infirm relative or dependant of either party;
- any agreement between the parties with respect to the ownership and division of the matrimonial assets made in contemplation of divorce;
- 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 giving of assistance or support by one party to the other party (whether or not of a material kind), including the giving of assistance or support which aids the other party in the carrying on of his or her occupation or business; and
The matters referred to in section 114(1) so far as they are relevant. These include:
- the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;
- the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
- the standard of living enjoyed by the family before the breakdown of the marriage;
- the age of each party to the marriage and the duration of the marriage;
- any physical or mental disability of either of the parties to the marriage.
What this means is that in dividing the assets, the courts will take into account any non-financial contribution by a spouse like homemaking and bringing up the children.
For example, Annie and Bernard got married. They each paid 20% towards the down payment of their HDB flat. Annie stopped work to look after their newborn child and Bernard’s aged father. Bernard worked and paid for the monthly mortgage. The marriage failed after 10 years and they decided to get a divorce. By then, Bernard had paid another 40% towards the purchase price. It does not mean that Annie will only get 20% of the flat upon divorce and Bernard will automatically get 20% (his down payment) + 40% (his payment towards the mortgage) of the flat. The court will take into account the various factors above, in particular, the non-monetary contributions made by Annie towards the marriage like looking after their child and Bernard’s father and any improvements she made to the flat etc. Annie is likely to get more than the 20% down payment made by her due to her non-monetary contributions towards the welfare of the family. The court can order the flat to be retained by Annie so that she and her child can continue to live there, or the court can order the flat to be sold and for the sale proceeds to be divided.
(B) For Muslims
For Muslims, it is set out in section 52(7) of the Administration of Muslim Law Act – “the Syariah Court will divide and apportion post-divorce all the matrimonial assets as it thinks “just and equitable”: see s 52(7) of the Administration of Muslim Law Act (Cap 3, 2009 Rev Ed)”
52(7) In making any order under subsection (3)(d), the Court shall have power to order the disposition or division between the parties of any property or the sale of any such property and the division between the parties of the proceeds of such sale in such proportions as the Court thinks just and equitable.
52 (3) The Court may, at any stage of the proceedings for divorce or nullity of marriage or after making a decree or order for divorce or nullity of marriage, or after any divorce has been registered under section 102 before 1st March 2009, on the application of any party, make such orders as it thinks fit with respect to:
(a) the payment of emas kahwin and marriage expenses (hantaran belanja) to the wife;
(b) the payment of a consolatory gift or mutaah to the wife;
(c) the custody, maintenance and education of the minor children of the parties; and
(d) the disposition or division of property on divorce or nullification of marriage.
Case Study Scenarios
We have included the following case studies to further illustrate a few different permutations of what happens in the event of a divorce.
Case Study 1: Charlie bought an HDB flat when he turned 35 in his sole name. It was fully paid for by the time he married at 38. His wife moved into his HDB flat after marriage. He did not add her name to the flat. He is now 45 and they are getting a divorce. They have no children. They have no other assets except this HDB flat. Can his wife claim any share in his HDB flat? Can he keep his HDB flat after the divorce?
Generally, assets acquired before marriage are not matrimonial assets unless they are ordinarily used by the “family” or substantially improved by his wife (for example, she paid for or did renovations) or both of them during the marriage. If the flat is considered not a matrimonial asset, then his ex-wife will not be entitled to a share of the flat. In that case, Charlie can continue to stay in his HDB flat after the divorce because he is above 35 years old and a Singapore citizen.
Case Study 2: Daisy is getting a divorce. She is 32-years-old. She has two children aged 4 and 6. Her ex-spouse and her own an EC which reached the MOP last year. Can she retain her EC so that she and her children can live there?
Since the MOP has been reached, depending on the court order from the divorce, the EC can be sold on the open market or it can be retained by one party. Although Daisy is under 35 years old, since she and her children forms a “family nucleus” under HDB rules, she meets HDB’s conditions for retaining the flat. However, she must ensure that she is also able to afford to pay for the EC and its mortgage.
Case Study 3: Elizabeth is 36 years old and a Singapore citizen. She just divorced from her spouse of 5 years. They have no children. They do have a HDB 3 room flat which they bought under the fiancé-fiancee scheme. She would like to retain the HDB flat – is it possible?
Elizabeth can retain the HDB flat, subject to the court’s order, as she is eligible to do so under the Single Singapore Citizen (SSC) Scheme. However, depending on what other assets there may be for division and the percentage of her share in the flat, Elizabeth may have to pay her ex-spouse his share of the flat in order to retain it.
Case Study 4: Adeline is a Malaysian and holds a Long-term Visit Pass. She is 33-years- old. She married a Singaporean 5 years ago and they own an HDB flat. They have no children. They have now divorced. Can she retain the HDB flat?
Felicia cannot retain the HDB flat. As she does not have any children, she does not form a “family nucleus” in order to do so. Also, as she is not a Singapore citizen and at least 35 years old, she cannot retain the flat under the SSC scheme. However, if the flat was jointly acquired during marriage, it is matrimonial property and she should be entitled to a share of the sale proceeds of the flat.
Not married yet but have broken up with your beau while queueing for your HDB flat? Learn more about what you can do here!