The majority of Singaporeans live in Housing and Development Board (HDB) flats and it is no surprise that many undergoing divorce proceedings are concern about their living arrangements after the split. Regardless which type of flat you purchased— BTO, EC or DBSS— HDB’s rules and regulations are still applicable.
Before you file for your divorce, your divorce lawyer should have already made standard queries to HDB regarding your eligibility to retain your matrimonial flat. This is because the family nucleus will be destroyed once the decree for divorce is made absolute. If your divorce is uncontested, your Agreed Matrimonial Property Plan (stating what you are going to do with the HDB flat) must also adhere to HDB’s policies.
Throughout the years, legislative changes have been made to allow more flexibility for individuals to retain their flats after divorce. This guide will explore viable options available for you, specifically what happens to your HDB flat after a divorce and whether you can retain it.
Do refer to the flowchart below to see if you are entitled to retain the HDB flat.
Your HDB will be divided upon divorce only if it is a matrimonial asset.
A “matrimonial asset” is an asset acquired before or during the marriage. It can be acquired by one or both parties to the marriage. A matrimonial asset must also satisfy the following criteria:
(a) The asset is ordinarily used or enjoyed by parties or children for shelter, transportation, household, education, recreational, social and aesthetic purposes.
(b) The asset was substantially improved during marriage by one or both parties to the marriage.
However, 2 types of assets not considered matrimonial assets:
(i) Assets acquired by gift or inheritance (e.g. the HBD flat is a gift from the husband’s brother, or the HDB is inherited from the wife’s father who just passed away)
(ii) Gift or inheritance not substantially improved during marriage by either party or both parties.
As a rule of thumb, the Minimum Occupation Period (MOP) is the first criteria that you must meet before you can sell your flat in the open market or transfer your ownership to your ex-spouse. MOP varies from each type of public housing, the mode of purchase and whether it was purchased with or without CPF Housing Grant.
The following table shows the MOP for each type of HDB flat:
If you are unable to meet the MOP, you will have to surrender it to HDB when you divorce. Many couples tend not to proceed with divorce as they are unwilling to suffer potential losses when they surrender their flat.
If you satisfy the MOP, you are allowed to retain your HDB flat. To retain the flat, a family nucleus is usually required. Exceptions are made if individuals qualify for the Single Singapore Citizens (SSC) scheme.
Thus, there are mainly 3 ways that you can retain it:
(a) Your parents’ name are originally listed on the flat application
(b) You have care and control of your child such that the child is living with you
(c) You are eligible under the Single Singaporean Citizen (SSC) scheme
Unless you have settled an agreement with your ex-spouse, the court will decide whether the flat shall be disposed or retained, who should retain the flat and what entitlements to be given to the other individual.
4.1 METHOD (1): PARENT’S NAME LISTED ON THE FLAT APPLICATION
Where your parents are originally listed on the flat application, you will be able to retain the flat. Conversely, if your spouse parents’ names are on the flat application, he/she will retain the flat. However, if neither you nor your spouse’s parents are listed on the flat, you will have to return the flat at the prevailing compensation price, subject to HDB’s approval.
4.2 METHOD (2): CARE AND CONTROL
To retain the flat, a family nucleus is usually required. A parent with care and control of a child constitutes a nucleus. Thus, if you have your child living with you, you will be able to retain the flat. This is subject to the preliminary requirement that the divorce was not due to an annulment of marriage.
If you do not have any children from the marriage, you may also form such a nucleus with your parents or a new spouse.
4.3 METHOD (3): SINGLE SINGAPOREAN CITIZEN (SSC) SCHEME
You can retain the flat by yourself under the SSC scheme. Eligibility criteria includes the following:-
(a) Individual must be a Singaporean citizen
(b) Individual must be at least 35 years old and above
(c) Matrimonial flat is resale flat bought in the open market without the CPF Housing Grant for Family. If the matrimonial flat is brought directly from HDB (including resale flats bought with the CPF Housing Grant for Family), the five-year minimum occupation period must be fulfilled before the divorced party is allowed to retain the flat.
If there is existing mortgage, the flat will have to be discharged upon transfer and a fresh loan will have to be applied. While parties are not eligible to apply for the CPF Housing Grant, they may be granted a HDB loan if they meet the requirements stipulated by HDB.
Prior to legislative changes in 2008, a spouse who was entitled to a bigger share of the matrimonial home was unable to obtain a transfer of ownership from his/her ex-spouse unless all monies used by outgoing-owner had been reimbursed into his/her CPF account with accrued interest. In the end, many people had no choice but to sell the flat.
With new amendments, the court can order an immediate transfer of the property from one spouse to another with any refunds being made to the member’s CPF account first. However, there will be a fresh charge placed on the property to secure the refund of CPF monies into ex-spouse’s CPF account should the property be sold in the future.
If you have successfully retained your HDB flat, you may proceed to sell it. There are two ways to sell the flat; either to sell it in the open market to other buyers, or to sell your shares to your ex-spouse.
A “Resale of Part-Share” is different from the transfer of ownership to the other spouse. The former is treated as a normal transaction at market price or a mutually agreed price.
Before one can do the above-mentioned transaction, he/she must obtain a court order to indicate the sale of one’s share of the matrimonial flat to the other by way of resale part-share.
However, if parties want to sell the flat in the open market, they must meet the MOP first. Divorced sellers need to produce the following documents:
(a) Deed of Separation or Interim Judgment (Decree Nisi) and Certificate of Making Interim Judgment Final (Decree Nisi Absolute)
(b) Court Order (if any)
Should the above documents not be in any of the 4 official languages in Singapore, you will require an official English translation done by an interpreter of the Subordinate Courts or the Supreme Court of Singapore.
HDB does not allow for a deferred sale of flats after the interim judgement for divorce is made final as the family nucleus has ceased to exist.
The sale proceeds will be used to pay off any outstanding mortgage loan, before reimbursing CPF the amount used to purchase the flat with accrued interest. The remaining balance will be divided between you and your ex-spouse in a manner instructed by the Family Justice Court.
Disclaimer: The information provided on the Huffe portal does not constitute legal advice. Articles are not written by lawyers. You should obtain specific legal advice from a lawyer before taking any legal action. Although we try our best to ensure the accuracy of the information on this website, you rely on it at your own risk.