Divorce is undoubtedly one of life's most challenging experiences, stirring up a whirlwind of emotions and uncertainties.
After working with countless of divorce cases, we understand the struggles and challenges that can arise, including what happens to your property after a divorce. We've put together this guide to help you navigate what happens to your matrimonial property during a divorce in Singapore.
This article will answer questions like: 1. What happens to your property after a divorce?
2. Who gets the house after a divorce?;
3. Can I transfer my house ownership after a divorce?; 4. How long does it take to sell an HDB flat after a divorce?; 5. HDB vs private property - is there any difference?; and 6. What happens in a Muslim divorce?
<< Do note that the following information should be used as a guide and not a replacement for legal advice >>
The first thing to learn is how Singapore’s divorce law work.
Overall, it is aimed at ensuring a fair and equitable distribution of assets. Properties that are relevant during a divorce are considered part of the matrimonial assets.
What are matrimonial assets?
Matrimonial assets include properties acquired during the marriage, properties used or enjoyed by both parties or their children, and properties that have substantially improved (e.g. contributed to renovation) by the other party in the marriage (Source: Women’s Charter 1961). Properties considered as matrimonial assets to the Courts are subject to division.
The Courts will consider various factors, including each party's financial contributions, needs of children, and future earning capacities, when determining asset division.
Muslims and non-Muslims go through a different divorce proceeding and set of laws. Muslim divorces are governed by the Syariah Court, while non-Muslims will go through the Family Court in a civil marriage. A Muslim divorce would also have to be handled by a separate lawyer familiar with Islamic laws in Singapore.
What happens to your house during a divorce?
Generally, two things can happen:
1) One party buys over the other party’s share via transfer of ownership;
2) The property is sold, with the proceeds shared accordingly.
In the event of a divorce, an HDB flat as matrimonial asset would encounter more. Firstly, for one party to buy over via transfer of ownership, the new owner needs to be able to own a property under one of HDB’s eligibility schemes.
Additionally for HDB flats, you can only sell the flat after the 5-year Minimum Occupation Period (MOP) has been met. Otherwise, you may either appeal to HDB to allow a sale in the open market, or to surrender the flat back to HDB.
What is the divorce procedure?
As divorce can be a long process that involves various intricacies, we’ll simply focus on property related aspects.
Broadly speaking, when initiating a divorce, there are two tracks - simplified or normal.
A simplified track is when both parties agree on the divorce and the ancillary matters relating to the divorce (e.g. post-divorce arrangements). If there are any disagreements on the divorce or the ancillary matters, a normal track is required - and that will take a longer time.
Mr Daniel Loh, director of BR Law shared that the timeline for each case can differ significantly. For amicable cases, it could take approximately four months from the start of filing to completion of the divorce procedure. In complex cases, most of the time would be spent on ancillary matters, including the division of matrimonial assets, sometimes even taking more than 1-2 years.
For simplification, here are the rough steps:
Step 1: Determine if there are grounds for divorce. This means being able to prove that the marriage has reached a stage of ‘irretrievable breakdown’. According to the Women’s Charter, this could include: - Adultery - Unreasonable behaviour - Desertion for 2 years - Separation for 3 years with consent, or 4 years without consent.
From 1 July 2024, couples may also cite mutual agreement as a basis for divorce.
Step 2: File for divorce by serving divorce papers to the other party.
Step 3: The other party has 8 days to decide whether to contest the divorce. If contested, the other party has another 14 days to file their defence.
Step 4:
4a [Simplified track, uncontested]
An Interim Judgment will be passed in approximately 1 month. This would include the pre-agreed division of matrimonial assets.
4b [Normal track, contested]
The case will go through the Family Court to determine if there is a case for divorce, and/or the division of matrimonial assets.
Step 5: If there is no further contest, the Final Judgment could be filed 3 months after the Interim Judgment is granted. The divorce is considered dissolved upon the granting of the Final Judgement.
How do the courts determine who gets the house after divorce?
A common misunderstanding that lawyers see, is the belief that a property is automatically split 50/50 amongst the couple.
Unfortunately, it is rarely that straightforward in reality.
Mr Loh shares that in truth, the underlying principle to the division of assets will be the spouses’ respective contributions towards the matrimonial assets and the marriage — be it financially and non-financially, both directly and indirectly.
The Women’s Charter would also come into consideration, factoring for the needs of the children (if any), contributions made to the welfare of the family (such as looking after the home or caring for the family), and any agreement between the parties concerning the division of the matrimonial assets.
Another common misconception shared by Mr Loh, is the belief that the Women’s Charter purely favours the woman. In fact, for certain situations, the Women’s Charter also serves to protect the man, such as when a husband is unable to provide for himself.
The exact split in the property may be complex and differs from case to case. This can result in lengthy discussions in and out of court amongst both parties. Some compromises might usually have to be made for both parties to move on. If either party intends to continue staying in and owning the matrimonial home, he or she would then have to buy over the other party’s share - usually at a market or an agreed rate.
If the house is to be sold after divorce, when can you sell it?
The house should typically only be sold after the Final Judgment is released. This is when there is a clear division of the matrimonial assets and proceeds upon the sale.
If your home is to be sold in the open market, we would advise you to speak to a property advisor or agent as soon as the Interim Judgment is passed, or even earlier. This is mainly to get a better gauge of the home valuation of the home - which we have found could differ from expectations. Alternatively, you may use a valuation report requester such as this, to get the latest valuation estimate of your home.
Another benefit of speaking to a property advisor earlier gives you more time to understand the selling procedure, as well as any pre-sale preparations to be done.
How long do you have to sell your HDB flat or private property after a divorce?
According to Mr Loh, the court typically orders for the sale of the property to be done within 3 - 6 months after the Final Judgment is passed. However, in some situations, the property might not have been sold within the deadline.
We have found that leniency and flexibility can be provided when the deadline is passed due to external circumstances, provided both parties still agree to proceed accordingly. However, it could be more complicated if the delay was intentional due to interference by either party.
Overall, once you the Interim Judgement, Final Judgement, and the division of matrimonial assets have been made clear, it could take between 3 to 9 months before the property gets completely sold. Factors that affect the timeline include - how long it takes to market the unit and what your next move is.
What happens if either party interferes with the sale of the property?
In our experience, we’ve seen cases of both amicable and non-amicable divorce. In a non-amicable divorce, either party could still attempt to interfere with the sale even after the issuance of the court order and finalization of divorce documents. This is usually due to disagreement about the divorce and/or how the proceeds are split after the house is sold.
While there are typically legal methods to resolve this (e.g. compel obedience to court), it is usually time-consuming and can result in additional legal fees. Therefore, it is important to work with a property advisor or agent familiar with handling cases of a divorce property.
Who should you speak to about divorce property settlement?
This depends on the stage of divorce you’re at. If you are contemplating to initiate a divorce, speak to a divorce lawyer, also known as a family lawyer.
As the divorce lawyer (family lawyer) will be together with you on a possibly emotional journey, we suggest having an initial conversation to get a sense of understanding and comfort before appointing. Mr Loh also emphasizes the importance of finding a divorce lawyer (family lawyer) that you trust and have confidence in.
If you have to sell your house during a divorce, speak to property advisors and agents who first understand the procedures of a property settlement after divorce, but can also empathize and connect with both parties.
The sale of a house is usually less complex when having a single agent involved in the sale, but there are often situations where both parties insist on having separate agents. In that case, ensure that all agents can consider the needs of both parties and are not simply favoring a single party at the expense of the other.
A divorce can be a long and arduous process, and we’ve witnessed how much emotional ordeal it can put one through, especially when involving division of matrimonial assets and when children are involved. A secondary role that the family lawyer and the property advisor can play is to help alleviate some of the stressors involved by being a neutral middleman.
We hope this article provides you with a clearer picture in the event of a divorce with a property part of your matrimonial assets.
This article was made possible with contributions from Mr Daniel Loh, Director of BR Law. For matters relating to legal proceedings in a divorce, you may reach them here.
If you're unsure about your situation and have questions about what happens to your property in a divorce, feel free to contact us to find out more.
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