What happens to your HDB Flat after Divorce

According to the Holmes-Rahe Stress Scale, divorce is the second highest stressor for adults, second only to the death of a spouse. Divorce is so stressful because it encompasses a lot of life-changing events. Above all, many people may feel stressed out about what will happen to their HDB flat when they get a divorce. After all, an HDB flat is a huge part of most Singaporeans’ assets.

In this article, we aim to address concerns about what happens to your HDB flat after divorce. Is your HDB flat considered a “matrimonial asset” and subject to division at the ancillary stage of divorce? If it is, how then will it be divided?

Is your HDB flat a “matrimonial asset”?

All properties purchased during marriage are considered matrimonial assets and they are subject to division at the ancillary stage of divorce, unless parties agree otherwise.

If you purchased your HDB flat prior to the marriage, S.112(10)(a)(i) of the Women’s Charter requires the asset to be “ordinarily used or enjoyed by both parties or one or more of their children while the parties are residing together for shelter or transportation or for household, education, recreational and social or aesthetic purposes” to classify it as a matrimonial asset.

In the case of BJS v BJT [2013] 4 SLR 41, the Court held that the HDB flat purchased in the sole name of the husband prior to the marriage was not considered as a matrimonial asset since the parties only occasionally or casually lived in the HDB flat.

Additional examples of casual residence are illustrated in Ryan Neil John v Berger Rosaline [2000] 3 SLR(R) 647 at paragraph 60 where the spouse had stayed in the property for no more than 21 days out of 14 years of marriage, and in JAF v JAE [2016] 3 SLR 717 at paragraph 15 where the spouse had only stayed in the property on only two occasions throughout the marriage.

Therefore, if you purchased your HDB flat prior to your marriage, the Court will only consider such property as matrimonial asset if parties have lived in the property as a family for an extended period of time during the marriage.

 

What if your HDB flat is inherited, does it fall under the pool of matrimonial assets?

Under S.112(10) of the Women’s Charter, inheritances do not fall under the pool of matrimonial assets unless the HDB flat has been “converted” to a matrimonial home or where it has been substantially improved during the marriage by the other party or by both parties to the marriage.

In this regard, the recent decision of USB v USA [2020] SGCA 57 sheds some light on what factors the Court takes into consideration to determine if an asset was substantially improved. Based on our understanding, the Court’s focus is whether there was some expenditure or application of effort towards the improvement of the asset in an economic sense. In terms of property, it was accepted in USB v USA that expenditure on renovation costs would be regarded as substantially improving the said property, as the renovation would have increased the sale value of the property.

>> Want to know more about ring-fencing your assets, especially inherited properties? Read our article on how you may do so here.

 

If my HDB flat falls into the matrimonial pool, how then will it be divided?

Generally, a HDB flat may be divided in the following ways:

  1. Sale

During the discussion, parties should decide and mutually agree on how the sale proceeds of the HDB flat will be apportioned. Alternatively, there are some instances where parties decide to sell their HDB flat before applying for divorce if the Minimum Occupancy Period (“MOP”) requirements of 5 years from date of purchase have been met. The agreed terms to sell the HDB flat should be reflected in a consent order duly prepared by your family lawyers and filed in Court.

For HDB flats, please note that there are restrictions on sale if the HDB flat has not met MOP. If you are unsure if your HDB flat has met MOP, you may check HDB’s MyHDB page. Navigate to the My Flat tab, under Purchased Flat > Flat Details > Minimum Occupation Period (MOP).

If parties are unable to come to an agreement, the Court can make an order at the ancillary matter hearing to direct parties to sell and apportion the proceeds in a certain way. Typically, the Court will take into consideration the parties’ respective direct and indirect financial contributions when deciding how to apportion the proceeds of the sale.

>> To learn more about the factors that the Court considers when dividing assets, please see our article on division of matrimonial assets here.

  1. Transfer

If any of the parties are eligible to take over the ownership of the HDB flat, you may consider transferring the ownership of the HDB flat to the eligible party. A party may take over the ownership of the flat only in the following situations:

  • If he/she is above 35 years old and eligible to own a HDB flat under the Single Singapore Citizen Scheme; or
  • If he/she is under 35 years old, the party having care and control over the child/children may take over the ownership of the HDB flat by forming a family nucleus with the child/children; or
  • If he/she is under 35 years old, the party can form a family nucleus with his/her parents, siblings and/or new intended spouse; and
  • Provided that he/she is able to take over the existing mortgage loan based on his/her sole income and make the appropriate CPF refunds or cash consideration to the outgoing party (if any).
  1. Surrender

In certain circumstances, the parties may be required to surrender their HDB flat to HDB if the MOP requirements are not fulfilled.

In order to prevent this, you may opt to do the following:

  • Apply to HDB to seek permission for an early sale of the HDB flat before meeting the MOP requirements. For the appeal application, parties will have to write an appeal letter to HDB explaining why they would like to seek permission to sell the HDB flat before MOP. There is no guarantee that HDB will approve the application unless convincing reasons are tendered in the appeal letter;
  • Wait for the MOP to lapse and enter into a Deed of Separation in the meantime; or
  • Surrender the HBB flat to HDB at the prevailing compensation price. However, the compensation price offered by HDB will be lower than the open market value and is often at around 95% of your initial purchase price, resulting in a clear loss.

If parties cannot come to a mutual agreement regarding how a HDB flat is to be divided, the Court will decide at an ancillary matter hearing regarding how the property will be divided between the parties.

If parties can come to a mutual agreement regarding how the HDB flat is to be divided, the agreed terms may be reflected in a consent order, which will be ‘sealed’ by the Court and subsequently be legally binding between the parties.

Our infographic below provides a summarized overview of how a HDB flat may be divided:

If you require guidance or legal advice on your divorce proceedings, we have good divorce lawyers in Singapore who would be happy to lend a hand to guide you and assist in negotiating with your spouse for the most amicable outcome

Speak to our experienced family lawyers today.