This would depend on whether or not the other party is a joint tenant of the property. If both parties are joint tenants, this means that both parties are required to consent on decisions regarding the property.
If one party does not consent to the sale of the property in the divorce, the other spouse cannot do so without the consent of the other party.
Mediation
As a result of the above predicament, parties can first attempt to solve this amicably. Parties may opt to mediate on the issue as to whether or not they can agree for the house to be sold.
If parties agree to do so, this agreement can be drafted into a draft consent order which will become an interim Order of the Court and subsequently, a final Court Order.
If mediation fails – where parties cannot agree on whether the property should be kept or sold, parties would then proceed to litigate the matter to determine whether or not the house should be sold or transferred, and other matters regarding the property. Our family lawyers are able to represent you during your mediation.
Litigation
Can a Court order for a party to transfer his or her share in the matrimonial property to the other party?
The Court will consider the following factors:
Whether or not it is equitable to order for a transfer of a party’s share to another party
In the event that parties cannot come to an agreement to transfer the ownership of the property to one party, parties can submit to the Court their stances on the matter.
It is not uncommon for parties to submit that he or she wishes for the matrimonial property to be transferred to his or her name with no cash consideration or CPF refund. The Court will then consider whether or not a transfer if made, would be just and equitable.
The Court will make a global assessment on all the assets belonging to the matrimonial pool and decide whether or not to include the property in question into the assessment or to assess the property separately depending on the parties’ specific circumstances.
Despite that a party may reiterate that he or she does not wish to sell the property, the Court may nevertheless proceed to order the sale, with its calculations to ensure that the division is fair and equitable.
The eligibility of the party to hold the property in his or her sole name
In order to determine whether or not a share of the property will be transferred to the other party, the Court will consider factors such as whether or not the party who intends to keep the property is eligible to do so.
Parties who have custody, care and control over the children, and are able to take on the home loan for the HDB flat (if the flat is not fully paid back yet), and are divorced (this does not include annulment of marriages), are eligible to retain the property if it is an HDB flat.
The party must also be eligible to do retain the flat under the Single Singapore Citizen (SSC) Scheme.
It is useful to note that fulfillment of HDB eligibility rules and approval for bank loans are not automatic. There is also another option to reduce the amount that the buyer has to take over – called the approval-in-principle (AIP) with a bank.
Based on the party’s credit history and financial situation, a bank will decide whether or not to approve the property loan. An AIP is not an actual loan, but a guarantee that the bank will extend a loan when there is a need to.
Court’s consideration of factors
Courts have considered whether or not there are children, and if there are, Courts will take their welfare into account in deciding whether or not a transfer of the property should be ordered.
For example, if parties in a marriage have multiple children, Courts may consider whether or not it is in the best interests of the children for one party to retain the property for the children to continue to live in the property for stability.
The Court will also consider the logistics of distribution of assets to the parties according to the Court’s ratio, and consider whether or not it is able to award the transfer of the home to one party in consideration with the rest of the assets.
Singapore Courts in practice
In regard to a party’s transfer of his or her share of the property to the other party, Courts have in practice, determined the appropriate ratios of the property to each party as a first step.
The Courts then grant the option of a party to pay the other party the % share of the valuation of the price of the property, less the outstanding housing loan for the transfer of the party’s rights in the property to the other party.
An excerpt of the judgment of UET v UEU (2017) SGFC 104 on the logistics of the transfer in the Order of Court that was made by the Family Court is as follows:
- The Parties share of the matrimonial home at xxx (“the matrimonial property”) shall be apportioned as follows: Plaintiff –30% and Defendant – 70%.
- The Defendant is granted the option within 6 months of the date of this Order, to pay the Plaintiff an amount equivalent to the Plaintiff’s 30% share of the valuation price of the matrimonial property less the outstanding housing loan (“the net value”) for the transfer other than by way of sale, of the Plaintiff’s rights in the matrimonial property to the Defendant. In such a case, Defendant shall bear the costs of the transfer.
- If the Defendant chooses to exercise this option, the Plaintiff’s 30% share shall be determined by way of a valuation report to be prepared by a valuer jointly appointed by the Parties and the Parties shall be jointly responsible for the expenses incurred, unless the Plaintiff’s 30% share has been offset by the Defendant’s payment to the Plaintiff for her share of the total pool of matrimonial assets listed above.
- Upon receipt of her 30% share of the net value or other amounts paid to her as offset by Defendant, Plaintiff has to refund to her own CPF account, the monies which she utilized for the purchase of the matrimonial property including accrued interests, in accordance with the CPF legislation and requirements. In the event of a shortfall, the refund shall be considered a partial refund.
- The Registrar or Deputy Registrar of the Family Justice Courts under section 31 of the Family Justice Act (Act 27 of 2014) is empowered to execute, sign or endorse all necessary documents relating to the matters contained in this order on behalf of either party should either party fail to so within seven (7) days of written request being made to the party.
At the clarification hearing on 25 May 2017, and at the Appellant’s Counsel’s request, Paragraph 22 of the 16 May 2017 Court Order was clarified to ensure that there would not be any misunderstanding in the future.
Hence an additional line was added as follows: “Unless the Plaintiff’s [Respondent’s] 30% share has been offset by the Defendant’s [Appellant’s] payment to the Plaintiff [Respondent] for her share of the total pool of matrimonial assets listed above”.
Paragraph 23 was also clarified with the addition of a final line as follows: “In the event of a shortfall, the refund shall be considered a partial refund.” This was to ensure that the Respondent would not have to come up with any cash to top-up what was utilised from her CPF accounts.
The Court noted that this would not result in any additional costs to the Appellant. In its final assessment, the Court also tried to take into account the consequences of the options provided for in the Court Order with regard to the matrimonial property and made adjustments accordingly.
Conclusion
Property issues are highly complex in divorce proceedings. Our Divorce Lawyers will be better able to guide you through the process with knowledge on your specific circumstances.
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