When a couple divorces or separates, the matrimonial home becomes the bone of contention. One major concern during the process is: who retains that HDB/ BTO home under joint tenancy? How will a fair division take place?
Even the most amicable divorces or separations require plenty of resources. Thus to save time, money and heartache, it is important to understand that individual cases differ based on the following factors:
1. How to establish if the HDB is indeed a matrimonial asset?
- If the HDB flat was acquired by the couple as part of a joint application or under the HDB fiancé-fiancee scheme, then it is a matrimonial asset and will be divided amongst them equally.
- Under Section 112(10) of The Women’s Charter, the HDB, if acquired before marriage by one of the spouses, will be considered a matrimonial asset only when:
a) the flat was enjoyed by the couple and their children for aesthetic, household, social, recreational, education, transportation or shelter purposes.
b) the flat was considerably enhanced or looked after during the marital period, by either or both of them.
Where there is no agreement as to whether a property should be defined as a matrimonial home, then the parties need to submit their respective positions through their divorce lawyers to be presented to the civil court during an ancillary hearing. If none of the parties are eligible to retain the flat, the flat may have to be returned at the prevailing compensation price, subject to approval.
2. Does joint tenancy or ‘tenancy-in-common’ matter in a divorce?
As joint tenants, no one party has a greater right over the other. Joint tenants need each other’s consent to make property decisions. The right of survivorship applies to properties that are held in joint tenancy. This means that upon the death of one tenant, the ownership of the property automatically transfers to the surviving party.
However, in case of a divorce, the joint tenancy becomes a ‘tenancy-in-common’. As a result, one party can have a larger share of the property than the other; and is free to sell his/her share. The right to survivorship is lost.
Thus, in the event of a death, the property belongs to the deceased heirs. The court decides on the fair division of share, legal access and custody of the property.
3. Divorce vs. Separation – what’s the difference?
4. How does the division of matrimonial assets in a divorce work?
According to section 52(7) of the Administration of Muslim Law Act states that “the Syariah Court under section 34 of the Act divides and apportions all the matrimonial assets post-divorce."
This depends on whether the divorce is due to
- Khuluk (divorce by redemption or compensation)
- Cerai taklik (divorce by breach of marriage condition) or
- Fasakh (annulment of marriage)
Based on the above, the Syariah Court has the power to dispose of, sell or divide the property between the said parties as the Court thinks is just and equitable.
The Syariah Court and the MUIS Appeal Board have amended the matrimonial assets in Women’s Charter (Charter) in early 2019, and as per the amendments:
- If an asset is a gift or inheritance, it cannot be divided upon divorce except if it is a matrimonial home or it has been substantially improved during the marriage.
- The Court can pass orders for the payment of “Mahr” (a husband’s gift to the wife on solemnization day), marriage expenses (hantaran belanja) or consolatory gift (mutaah) to the wife, as the court thinks is just.
- The Court decides the custody, maintenance and education of the minor children of the parties; as well as
- The disposition or division of shared property on divorce or nullification of marriage.
Unlike the Syariah court, the civil courts use the “uplift” methodology in the division of assets. Thus, as per Section 112(2) of The Women’s Charter, the division of matrimonial assets depends on the following factors:
- 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 the joint benefit of any child in 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 and division of matrimonial assets owing to the deed of separation.
- The assistance provided 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 needs of the children involved.
- The length of the marriage.
- The income, earning capacity, the standard of living and financial resources, which the family experienced before the separation and is likely to change in the anticipated future.
Divorce and separation can be an expensive roller coaster of emotions and stress, especially when they revolve around your home, a matter close to the heart.
However, you’ll be able to get through it all, if you focus your energy and resources on the above factors and stay informed on your rights.
This article was curated by Manasi Hukku. Manasi likes to cover the intersection between research and relevance to help readers find a place they’ll love. She is a Medium columnist, mother of two and UX Conversation Designer.