What happens to your house after your divorce?
No one enters a marriage expecting it to fail. However in the event of a divorce, the home is usually the largest asset to be divided; hence it is also typically the source of the most contention.
This article explains what could happen to your house following a divorce.
What Happens To My Property after Divorce?
If you and your spouse are going through a divorce, your property (e.g. private property or HDB flat) will be liable to be divided upon divorce if the Court considers it to be a matrimonial asset.
However, if the Court does not consider your property to be a matrimonial asset, your property will not be divided and both you and your ex-spouse may retain your respective shares in the property.
How matrimonial assets will be divided in a divorce in Singapore is often a contentious issue, given that it can greatly affect one’s standard of living post divorce.
In this article, we will explore what matrimonial assets can be divided and the general guidelines courts adopt in coming to a definite percentage ratio for parties. If you want to have a good estimate of how your assets will be divided specifically in your divorce, you may want to seek the advice of a divorce lawyer.
*Please note that the following is for reference and DOES NOT constitute legal advice. If in doubt, please consult a family lawyer.*
What are Matrimonial Assets?
Under section 112(10) of the Women’s Charter, matrimonial assets include:
- Assets acquired by one or both parties during the marriage
- Assets used by one or both parties or their children for various purposes
- Assets acquired before the marriage but substantially improved in quality during the marriage
Assets which are excluded from the definition of matrimonial assets are:
- Assets received as gifts or inheritance
- Gifts or inheritance that has not been substantially improved during the marriage
Common examples of matrimonial assets include the family car, shares, savings, the cash balance in the couple’s CPF accounts, businesses and jewelry.
Finally, gifts between spouses may be considered matrimonial assets depending on the background behind the giving of the gift.
How are Matrimonial Assets Divided?
During the ancillary matters hearings, the Court will take into account various factors, listed in section 112(2) of the Women’s Charter, to achieve a fair result whilst dividing contested assets.
1. The extent of financial contributions towards these assets
The Court will consider the extent of the contributions made by each party towards obtaining, maintaining and improving the asset.
2. The extent of non-financial contributions towards the welfare of the family
These include looking after the household and caring for any elderly or infirmed family members. The extent which support is given to allow the other party to pursue his/her career is also considered.
3. Debt owed
The Court will look into whether the debt was taken for the joint benefit of both parties, for individual benefit, or for the child’s benefit.
4. The needs of the child
In determining the child’s needs, the Courts will take into account the party whom care and control over the child has been given.
5. Any agreements on the divisions of assets between the parties
Such agreements can include both pre-nuptial and post-nuptial agreements.
6. The financial independence of each party after divorce
The Courts will consider the working abilities and qualifications of both parties.
7. The needs of each party after divorce
Nonetheless, it should be noted that the proportions for the division of matrimonial assets are determined on a case-by-case basis. There is no default position with regard to this issue.
Must I Transfer My Share in the Property to My Ex-Spouse?
You must transfer your share in the matrimonial property to your ex-spouse if the Court is of the view that it is fair and reasonable to order you to do so. This is regardless of whether the property was held in joint tenancy or tenancy-in-common.
The Court may not exercise its power to order you to transfer your share in the property to your ex-spouse if, you and your ex-spouse have come to a private agreement on your own on what should happen to the property after the divorce.
For example, you may have agreed to transfer your share in the property to your ex-spouse (as a gift or for compensation).
Can My Ex-Spouse Retain the HDB flat?
If your ex-spouse is entitled to the HDB flat after the divorce but the Minimum Occupation Period (MOP) for retaining the flat is not satisfied, it must be surrendered to HDB at the prevailing HDB prices upon divorce.
If the MOP is satisfied, your ex-spouse may retain the HDB flat in the following situations:
- If he/she has care and control of the children, and he/she is capable of financing the home loan for the HDB flat.
- If there are no children to the marriage and he/she is eligible to retain the flat under the Single Citizen Scheme.
- If either of your (you or your spouse’s) parents’ names are listed on the flat application.
If your situation falls under one of the above, you may transfer your share in the HDB flat to your ex-spouse in order for him/her to retain it.
If your situation does not fall under any of the above, you and your ex-spouse must sell your HDB flat in the open market.
What documents are needed to submit for the transfer?
You need the original copies of the following documents for your transfer application to be processed:
- Identity Card.
- Duplicate Lease (if applicable).
- Divorce documents (e.g. Certificate of Making Decree Nisi Absolute)
- Deed of Separation (if applicable)
- If the court ordered the transfer, a written confirmation from the CPF Board indicating their consent to the Court Order.
- A written confirmation from your private lawyer that he or she is acting on your behalf for the transfer.
- If you or your ex-spouse is an undischarged bankrupt, written consent from the Official Assignee on the ownership change.
- If your ex-spouse is overseas, a valid HDB Power of Attorney.
- Any other documents requested by HDB.
What are the costs for the transfer?
The Court will decide whether you or your ex-spouse should bear the cost of the transfer.
If you have to bear the cost of the transfer, HDB will send you a letter to inform you of the estimated fees payable and the documents required to finalize the transfer once it processes your transfer application.
Fees payable generally includes:
- Administrative fees
- Stamp Duties
- Conveyancing fees
The amount of stamp duties and conveyancing fees payable depends on the flat type, loan amount, and share of ownership being transferred.
You and your ex-spouse will need to attend an appointment at the HDB branch to finalize the transfer and make payment for all fees.
to keep a HDB FLAT after a divorce, typically these criteria need to be satisfied;
You have custody, care and control of the children
Also you should have the financial ability to take on the home loan for the HDB flat.
In the instance that you and your ex-spouse have no children; retaining a flat under the Single Singapore Citizen Scheme requires that you are a Singapore citizen and at least 35 years old. If you can’t meet these requirements, you would have to share the flat with someone else under another eligibility scheme.
The home is a resale flat purchased from the market without the CPF housing grant
You must have fulfilled the 5 years Minimum Occupation Period (MOP)
If neither of you meet the criteria to keep the flat, you would need to sell flat.
If you have completed the minimum occupation period, you could sell it in the open market.
If you have not met the required minimum occupation period, you would need to surrender the flat back to HDB at prevailing prices.
HOW DO I TRANSFER MY SHARE OF THE PRIVATE PROPERTY TO MY EX-SPOUSE?
To transfer private property that is subject to a bank mortgage or CPF charge, you will need to check with the bank and the CPF board on the applicable process and obtain their approval. The bank will ordinarily require the existing mortgage to be discharged, and a fresh mortgage entered into under the name of the ex-spouse, provided all lending requirements have been met.