What Happens to Your HDB Flat after Divorce?
In a divorce, what happens to your property, and more specifically your HDB flat?
The property that you and your spouse share will most likely be the largest asset that has to be divided. This guide will explain the consequences of a divorce, with regard to what happens to your HDB flat and whether you can keep it.
What Happens to the HDB Flat after Divorce: How is This Decided?
1. You and your spouse agree on what should happen to the HDB flat after divorce
You and your spouse are free to mutually agree on what should happen to the HDB flat after divorce.
For example, one spouse may agree to transfer their interest in the flat to the other spouse, to allow the other spouse to keep the flat.
Alternatively, both of you may decide to sell the flat and split the sale proceeds in a certain proportion.
Your decision on the HDB flat will be recorded in a court judgment during an ancillary matters hearing. However, if you and your spouse are unable to agree on what should happen to the HDB flat after the divorce, the court will decide this on your behalf when dividing your matrimonial assets.
2. The court decides what will happen to the HDB flat after divorce
During the divorce process, the court will divide all matrimonial assets which the couple cannot agree on what should happen to them.
(a) Is the HDB flat a matrimonial asset?
Your HDB flat is most likely a matrimonial asset, which will be divided upon divorce.
The Women’s Charter defines “matrimonial assets” to be an asset of any nature acquired during the marriage by one or both parties. If the asset was acquired before the marriage by only one party, or by both parties, the asset will only be a matrimonial asset if:
- The asset is ordinarily used or enjoyed by both parties or one or more of their children while the parties are living together for shelter or transportation or for household, education, recreational, social or aesthetic purposes; and
- The asset has been substantially improved during the marriage by the other party or by both parties to the marriage.
If the HDB flat is acquired before marriage via a gift from a family member, or inherited from one spouse’s father after he passes away, it will initially not be a matrimonial asset.
However, the same HDB flat can become a matrimonial asset if it becomes the matrimonial home or if the gift/inheritance has been substantially improved during the marriage by the other party or both parties to the marriage.
It should also be noted that a spouse cannot claim that they have an interest in an HDB flat that is owned by the other spouse simply because they were both married. That spouse will only have an interest in flat if it is considered a “matrimonial asset” under the Women’s Charter.
(b) If the HDB flat is a matrimonial asset, how will it be divided?
When dividing the matrimonial assets, the court will decide what should happen to the HDB flat as well. Examples of orders it may make include:
- Requiring one spouse to transfer their interest in the flat to the other spouse
- Ordering the flat to be sold, and the proceeds divided between the parties in a certain proportion
Matrimonial assets need not necessarily be divided equally. For example, where the marriage was brief, the courts would prefer to divide the assets according to the parties’ respective financial contributions to their purchase.
The court’s decision on the division depends on various factors, such as these in section 112(2) of the Women’s Charter:
- The extent of contributions each party has made in terms of 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 of any child of the marriage
- The extent of contributions each party has made towards the family’s welfare, such as looking after the home or caring for the family or any aged relative dependent on either party
- Any agreement between the parties with respect to the ownership an division of matrimonial assets made in contemplation of divorce, such as the deed of separation
- The assistance given by one party to the other (this can be material or immaterial), including assistance that helps the other party to carry out his job or business
- 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 children’s needs
- The marriage’s length
- Each party’s financial needs
These factors are not exhaustive. Instead, the court will take all circumstances of the case into account when dividing the HDB flat.
Read more about division of matrimonial assets in a divorce in our other article.
If You are Entitled to Retain the HDB Flat after Divorce, Will You be Able to Keep It?
Summarising the discussion above, you may be entitled to retain the HDB flat after the divorce if either:
- Your spouse agrees to transfer their interest in the flat to you
- The court orders your spouse to transfer their interest in the flat to you, if you and your spouse cannot agree on what should happen to the HDB flat after the divorce
However, this does not necessarily mean you get to keep the HDB flat. This is because you will first have to meet HDB’s eligibility conditions to do so.
You will have to fall within one of these situations:
Situation 1: You have care and control of your children
If you have care and control of your children, you will be able to retain the flat.
You should also have the financial ability to take on the home loan for the HDB flat.
Situation 2: You are eligible under the Single Singapore Citizen Scheme
If you and your spouse have no children, the flat can still be retained under the Single Singapore Citizen Scheme if you are:
- A Singapore citizen
- At least 35 years old
- The matrimonial flat is a resale flat purchased from the open market without the CPF Housing Grant for Family
If the HDB flat was bought directly from HDB, or a resale flat bought with the CPF Housing Grant for Family, you must satisfy the 5-year Minimum Occupation Period (MOP) before you can retain the flat under the Single Singapore Citizen Scheme.
If you cannot satisfy this MOP, you can include another person to retain the flat with. However, this is subject to HDB’s requirements.
What If You Cannot Meet the Situations Mentioned Above to Keep Your HDB Flat after Divorce?
If you cannot meet the conditions stipulated above, you have to dispose of your HDB flat upon your divorce.
For example, if you and your spouse have completed the 5-year MOP, then both of you may sell the flat on the open market.
However, if the MOP has not been met, then the parties have to return the flat at the prevailing compensation price, subject to the HDB’s approval.
If the HDB Flat will be Sold, How will the Sale Proceeds be Divided?
The framework for the dividing of HDB flat sale proceeds is the same as the division of the HDB flat itself (see above).
In other words, you and your spouse can agree on the proportion of the split. But if you and your spouse are unable to agree, the court will decide on this for you, based on:
- Whether the sale proceeds are considered “matrimonial assets”; and
- The factors for deciding what the proportion of the split should be
In one case, a husband financially contributed much more to the purchase of the HDB flat (their matrimonial home) by contributing 80% of the purchase price of the house, with the wife contributing 20% of the price. The couple had been married for 18 years.
The contribution ratio alone does not mean that the husband will obtain 80% of the proceeds. The court took into account non-financial contributions of the wife, such as her looking after the home and caring for the family, and the court gave her due credit in such a case.
In addition, the court took into account the long marriage of the couple, which lasted 18 years, along with payments made by the wife for children’s clothes, furniture and other family items.
The court eventually ordered the proceeds of the sale to be divided 60/40, with 60% going to the husband, and 40% going to the wife.
What Happens to Your HDB Flat upon Annulment of Marriage (Instead of Divorce)?
The exception is if either side’s parents were originally listed in the application to buy the flat. If the names of either parties’ parents are not on the flat application, you may have to return the flat at the prevailing compensation price, subject to HDB’s approval.
You can read our other article on what happens to an HDB flat after an annulment of marriage.
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