Divorce is something we would avoid as much as possible.
But sometimes all efforts to save the marriage fail. The cracks in the relationship are too much to repair.
Divorce is not an easy matter whether emotionally, mentally and financially. It even gets more complicated when it comes to dealing with the HDB flat.
If they think they can just simply get 50% of the asset, they are wrong.
Is the HDB or BTO flat a matrimonial asset?
The first thing to know when determining the fate of the HDB flat is whether it is a matrimonial asset or not. Even if the couple has lived in the flat, this is not a deciding factor with its status.
- If the couple has purchased the flat under HDB fiance-fiancee scheme or during the marriage, then it is a matrimonial asset.
- If one of the parties has purchased the flat before marriage, it can also be considered as matrimonial property in two ways.
- The flat has been improved during the period of marriage. And this improvement can be done either by one party or by both of them.
- The flat has been used by the couple and their children (if any) for various purposes.
Simply, if the HDB or BTO flat has been inherited, gifted or purchased (not under HDB fiance-fiancee scheme) before the marriage, and there was no improvement done, then it is not a matrimonial property.
HDB Flat Ownership Rules
- Divorce HDB Less than 5 Years
Let’s say the flat is indeed a matrimonial asset, then the property must meet the Minimum Occupation Period (MOP). MOP is usually 5 years. The couple should have been in that flat for at least five years to be able to sell it or for one of the parties to retain ownership.
If the couple has not met the MOP requirement, then no one can retain the flat. It has to be returned to the HDB at prevailing HDB prices.
- Retain HDB After Divorce
If there is an option to retain the HDB flat, then a decision has to be made on who will keep the ownership.
- Divorced with children
The party who has the custody care and control of the children will retain the flat provided that the other conditions have been met.
- Divorced without children
If the couple has no children, then one party can retain the property under the Single Singapore Citizen Scheme. The following has to be met first.
- The retaining party has to be a Singapore citizen
- Must be at least 35 years old
- The flat has been purchased from the open market without the use of CPF Housing Grant for Family
On the other hand, the party who wants to retain the flat can include another person to own the flat. However, HDB will still take note of other conditions according to its own discretion.
- Whose names are on the flat application
Let’s say that couple has satisfied the MOP, then who will retain the flat if it is a matrimonial asset? The party whose parents’ names are originally on the flat application will retain the flat.
- Selling the HDB Flat After Divorce
No one can retain the flat if they fall on these factors:
- If the married couple has divorced due to non-consummation of marriage
- If the couple’s marriage has been annulled
- If the marriage has never pushed through. They broke as fiancée and fiancé.
The only exception is that if either side’s parent were originally listed in the flat application.
Do not expect that the proceeds of the sold HDB Flat will be divided equally. Rather, it will be divided as deem fairly by the court. There are a lot of factors being considered as mandated by section 112(2) of the Women’s Charter.
- The party’s contribution in terms of finances, effort and taking care of the home itself
- Debts of the couple for their family’s benefit
- The care for the family’s welfare including their children and elderly relative dependent on the party
- Legal mutual agreements under the Deed of Separation
- Their child’s needs
- Financial needs of each party
- Length of the marriage of the couple
- Benefits enjoyed by one of the parties in the flat in the absence of the other party
- Assistance was given by one party to the other that helps in the job or business. This can either be material or immaterial.
The court usually considers these factors when deciding how the parties will divide the matrimonial assets. The decision does not only depend on how much each one has paid for the flat, it also takes into consideration each party’s welfare especially if they have children.
Let’s say, the husband paid 70% of the HDB flat, and the wife only paid for the 30%. However, the wife was usually at home taking care of the family needs for the last 15 years.
Then, if the flat was sold after their divorce, the court may make give the wife higher percentage of the proceeds than just 30% since she had improved the home through care for 15 years.
If there is still an existing housing loan, then the one who retains the flat will have to continue the repayments.
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