Divorce in and of itself is one of the most stressful and emotional experiences that a person can experience in life. But there are things that can make it even worse, such as when it comes down to dividing a property, or what’s called a matrimontial home.
After all, when it comes to dividing up an matrimonial asset worth hundreds of thousands or even millions, neither husband nor wife would want to lose out and end up living miserably afterwards. And so, custody of children aside, a matrimonial home is typically the most hotly contested issue in legal divorce proceedings.
What is a matrimonial asset?
Under the Singapore Women’s Charter, matrimonial assets may include:
- Assets that are acquired by either or both parties during the marriage
- Assets used by either or both parties or their children for various purposes
- Assets that are acquired before the marriage but substantially improved in quality during the marriage
A property in which the couple lived in (with or without children/parents) during the marriage is considered a matrimontial home (i.e. a matrimonial asset).
Other common examples of matrimonial assets may include a vehicle used by the family, investment monies, bank savings, the cash balance in each party’s CPF accounts, business interests and even jewellery.
These assets are not considered matrimonial assets:
- Assets that are received as gifts or inheritance
- Gifts or inheritance that have not been substantially improved during the marriage
Being the only one to pay for a property doesn’t mean its all yours, in the event of a divorce. | Image source: iStock
Must the division of a matrimonial home be decided by the court?
The short answer is no, as there are different ways that couples can carry out the divorce process in Singapore. (Note that couples married under Muslim law, or marriages where one party is Muslim, are subject to different considerations.)
In Singapore, a married couple may file for divorce only after three years of marriage, except in circumstances where either party can prove “exceptional depravity” or “exceptional hardship”. But a divorce doesn’t necessarily involve a messy legal fight:
Couples married for less than three years may file for an annulment of marriage. In an annulment of marriage, the Court will divide assets with the aim of leaving the couple in the same financial state as before the marriage.
In other words, if the parties did not obtain any marital assets (e.g. property) during their marriage, each party will be left with whatever money and property they brought into the marriage.
If both parties agree to come together for a Collaborative Family Practice (CFP), otherwise known as an uncontested divorce, both parties engage a family lawyer accredited by the Singapore Mediation Centre and agree to not go to Court.
In the CFP framework, the settlement, including the division of matrimonial assets such as the matrimonial home, will be reached by mutual agreement between both parties and their lawyers. Settlements are also kept private.
If the either or both parties decide not to go the CFP route or if the CFP process fails, both parties can proceed with a contested divorce, which is a two-stage process:
- Stage 1: Temination of Marriage and Interim Judgment. Either or both parties submit Court documents for divorce. (Couples with a HDB flat must file an additional Proposed Matrimonial Housing Plan.) The resulting Interim Judgment of Divorce dissolves the marriage but does not settle issues about the children, property or maintenance. Such issues are known as ‘ancillary matters’ and are heard in Stage 2.
- Stage 2: Ancillary Matters and Final Judgment. In a Court hearing, each party makes a case in front of a judge on issues including the division of property. The Certificate of Final Judgment and settlements are made public (i.e. your friends can find out) and decided by the judge.
Stage 2 is where each party is required to disclose all assets, liabilities, income and expenditure by filing their respective Affidavit of Assets and Means, before making their arguments on what matrimonial assets should go to them, during the hearing.
If the net value of matrimonial assets does not exceed S$1.5 million, cases will be heard in the Family Court. Any case involving a larger value of assets will be transferred to the High Court to be heard.
And, in a contested divorce, these are the factors that the Court takes into account:
Firstly, in a contested divorce, there are established general guidelines—according to Section 112(2) of the Women’s Charter—that help judges decide how to split up the asset for a matrimonial home in a manner that’s “just and equitable”. (Note that equitable does not mean “equal”, it means “fair and impartial”.)
Here are the guidelines that help judges determine the division of property in the Final Judgment:
- The extent of the contributions made by each party in money, property or work towards acquiring, improving or maintaining the matrimonial assets, which a money value can be easily ascribed to.
- The extent of the contributions made by each party to the welfare of the family, including looking after the home or caring for the family or any aged or infirm relative or dependant of either party. This is more intangible and harder to assign a monetary value to, compared to the previous point. The Court will also take into account the opportunity cost that a party incurs, for example in giving up potential income to raise children.
- The extent of the contributions made by each party in assistance and support of an occupation or business. This contribution can be material (e.g. money) or otherwise (e.g. time).
- Any debt undertaken by either party for their joint benefit or for the benefit of any child of the marriage. Share of matrimonial property could be given to make up the debt burden.
- The needs of the children (if any) of the marriage. A greater share of matrimonial property may be given to the party who is granted care and control of the child.
- Any agreement between the parties with respect to the ownership and division of the matrimonial assets made in contemplation of divorce (e.g. pre-nuptial and post-nuptial agreements)
- Whether the matrimonial home has benefitted one party only and not the other in any way, and the duration of the exclusion. For example, a party who has paid for half a matrimonial home but, for some reason, was not allowed to live in it during the marriage could be given a given a greater share as a form of remedy.
- The financial independence of each party after divorce. A share of matrimonial assets may be given to the a party deemed to not be financially indepedent (e.g. in the case of physical disability).
Additional factors that can affect the Final Judgment:
When deciding the outcome of ancillary matters, such as how a matrimonial home should be divided, judges have to weigh both financial and non-financial contributions from either party. These factors affect the significance of the contributions, in the eyes of the Court:
The length of the marriage
Indirect contributions by a spouse are generally more significant in longer marriages. Conversely, indirect contributions are less significant in short marriages without children.
The size of the matrimonial assets
In the event that accumulated matrimonial assets are significantly large and likely accumulated by a sole party (i.e. a $20 million penthouse bought by a spouse using his/her own money), such direct contributions would likely be given a higher weightage.
The extent and nature of the indirect contributions
Not all indirect contributions are equal in the eyes of the Court. For example, if a household had employed a domestic helper to look after the children while both husband and wife went to work, the indirect contributions of, say, the wife to the children’s upbringing would be smaller compared to that of a housewife.
A stay-home housewife taking care of children may amount to a significant indirect contribution. | Image source: iStock
What are the types of Final Judgments relating to a matrimonial home?
After the hearing for ancillary matters is done and dusted, the Court may make any one or more of these Orders in a Final Judgment:
- An Order to sell any matrimonial property, or any part thereof, and for the division of proceeds.
- An Order to vest any matrimonial property (that was previously owned by both parties) jointly in both the parties, in terms of shares, in a way that the Court considers just and equitable (more for investment properties).
- An Order to vest any matrimonial property, or any part thereof, to one of the parties only.
- An Order for any matrimonial property, or its sale proceeds, to be vested in any person to be held on trust for such period and on terms determined by the Court and specified in the Order.
- An Order to postpone the sale or vesting of any share in any matrimonial property, or any part of such share, until a specified future date; until a specific event happens; or until a specific condition is met.
- An Order to grant either party, for a specified period and with conditions that the Court sees fit, the exclusive occupation of a matrimonial property (meaning the other party is barred from entering the property)
- An Order for one party to pay a sum of money to the other
The Orders may also apply to matrimonial assets in general, in addition to properties.
This article was first published in 99.co and republished on theAsianparent with permission.
Lead image source: iStock