What Happens to the Family Home in a Divorce?

How does the court decide?

Under Section 76 of the Law Reform (Marriage and Divorce) Act 1976, the court can divide matrimonial property, including the family home, when it grants a divorce.

For a home bought through both spouses’ efforts, the court looks at:

• What each of you contributed in money, property or work towards buying it.
• Debts either of you took on for your joint benefit.
• The needs of any young children.

It then leans towards an equal split.

For a home mainly paid for by one spouse, the court looks at the other spouse’s contribution to the family, such as looking after the home and caring for the family, and the children’s needs.

The house does not automatically go to whoever is named on the title.

What are the options for the home?

Sell it. The house is sold, the mortgage is paid off, and the rest is divided as the court orders. It gives both of you a clean break.

Transfer it. One spouse keeps the house and pays the other for their share, in cash, by giving up other assets, or over time.

Delay the sale. One spouse, usually the parent the children live with, stays in the house for a set time, often until the youngest child finishes secondary school. It is then sold and the money divided.

What about the mortgage?

The mortgage is a contract with the bank, and a divorce order does not change it. If you are both borrowers, you both stay liable to the bank, whatever the order says about who keeps the house.

If one spouse keeps the home, they usually need to refinance the loan in their own name. The bank decides based on their income and credit record. Your lawyer can arrange for the transfer and refinancing to happen together.

If neither of you can pay the mortgage alone, the court may order a sale even if you both want to keep the house.

What if the house is in one name only?

A home bought during the marriage can be divided even if only one spouse is on the title. The other spouse’s claim rests on their contributions: paying towards the loan or renovations, or looking after the home and children.

A home owned by one spouse before the marriage is generally not divided. But under Section 76(5), it counts as acquired during the marriage if the other spouse, or both of you together, substantially improved it during the marriage.

Rights of a homemaker

Section 76 specifically recognises the contribution of a spouse who looked after the home and cared for the family. A homemaker can claim a share of the family home even if the other spouse paid for it.

Even where the other spouse paid for the asset, the court weighs the contribution of looking after the home and family. How much the homemaker receives depends on the facts, including how long the marriage lasted and what they contributed.

Homes with loans still owing

The court divides the net value: market value minus the loan still owing.

If more is owed than the house is worth, the court must decide how the shortfall is shared. You may both remain liable if it is sold at a loss.

Your lawyer will need the latest loan statement showing what is owed, the monthly instalment and the remaining term. Together with a valuation, this shows what there is to divide.

Stamp duty and transfer costs

If the house is transferred from one spouse to the other under the divorce order, stamp duty relief may be available under the Stamp Act 1949.

Your lawyer handles the transfer papers, the bank’s consent if there is a loan, and registration at the land office. There may be legal fees for the transfer and any refinancing.

These costs should be counted in the overall division. Sometimes the court order says who pays them.

What to prepare

Before meeting a lawyer, gather:

• The title (individual or strata).
• The sale and purchase agreement.
• The latest loan statement.
• Recent EPF statements, if EPF was used for the deposit or loan.

Get a current valuation from a licensed valuer. If both sides’ valuations differ, the court may appoint its own.

Keep a record of your contributions: loan payments, renovation receipts and evidence of running the household while your spouse worked.

Looking to engage a divorce lawyer? If you are unsure whether you can keep the house or what share you may get, request independent lawyer contact via WhatsApp: Request Lawyer Contact. For general information, use our guides and tools.