Friday, May 18, 2012
Matrimonial Assets
THAI MARRIAGE property law is largely governed by the section property between husband and wife in the Civil and Commercial Code. In general 'benefit and income' of each spouse acquired during marriage will under Thai law become jointly owned property between husband and wife. A prenuptial agreement is an allowed concept in Thailand however it is not possible to exclude the general property regime between husband and wife in a prenuptial agreement.
Thai family and marriage laws specify that property belonging to either spouse before the marriage remains his or her personal property after the marriage. If during the marriage personal property has been exchanged to other property this remains a personal property.
Section 1471 of the Thailand Civil and Commercial Code: 'Personal property (Sin Suan Tua) consists of: (1) property belonging to either spouse before marriage, (2) property for personal use, dress or ornament suitable for station in life, or tools necessary for carrying on the profession of either spouse, (3) property acquired by either spouse during marriage through a will or gift'.
Section 1472 of the Civil and Commercial Code: 'As regards to Sin Suan Tua (personal property), if it has been exchanged to other property, other property has been bought or money has been acquired from selling it, such other property or money acquired shall be Sin Suan Tua. Where the Sin Suan Tua has been totally or partly destroyed but replaced by other property or the money, such other property shall be Sin Suan Tua'.
Section 1474 marital, also referred to as matrimonial or common (jointly owned) property between husband and wife and under Thai law called 'Sin Somros' consists of:
Section 1474 last sentence: In case of doubt as to whether a property is Sin Somros (jointly owned) or not it shall be presumed to be Sin Somros. Section 1474 means that under Thai family laws all property acquired throughout the course of the marriage becomes jointly owned marital property between husband and wife regardless of how the title is held, except properties acquired during the marriage that fall under the sections 1471 and 1472 above (some written evidence/ proof shall be required).
Sample of the benefit and income rule in Thai family laws (property between husband and wife): If you have 100,000 Thai baht in your bank account at the time of marriage and at the time of divorce in Thailand you saved together with your Thai spouse (the source does not matter) an additional 15,000 baht from and received 5,000 interest over your savings your spouse shall according to Thai family laws be entitled to half of the increase (i.e. 10,000 baht). An inheritance will not automatically become a marital property but becomes a personal property (Sin Suan Tua) of the person receiving the inheritance and the other spouse is not entitled in a divorce to the increase the other spouse received by the inheritance.
Each spouse shall remain the manager of his or her personal property during marriage in Thailand. Certain marital property must be jointly managed and other property can be managed by each spouse. A prenuptial agreement as a pre-marriage contract may give the right to manage Sin Somros (jointly owned marital property) to one of the spouses. Without a prenuptial or marriage contract certain legal acts with regards to certain jointly owned properties must be managed jointly by husband and wife and requires joint consent.
A foreigner is not allowed to have joint ownership in land together with the Thai spouse and land cannot be a Sim Somros, jointly owned property between husband and wife. As a non-marital asset it will be managed by the Thai spouse solely. In practice often land and house will be registered as a personal property of the Thai national married to a foreigner. An important aspect for the foreign spouse is of course the fact that the Thai spouse has full management and control over the property and is able to sell the property without the consent of the foreign spouse, and as a non-maritrimonial asset it will in a divorce not divided as a common property between husband and wife (read up on division of the marital home).
Also if the Thai spouse dies the foreigner has to deal with the heirs of the Thai spouse unless a last will has been made, read more...
If protection is required the first protection for the foreign spouse lies in obtaining joint or sole ownership over the building separate from the land. It's only the land aspect of the property that is restricted for foreign ownership, not the structures upon on the land or immovable property as a whole. The structures on the land can be a jointly owned property or even owned as a personal property of the foreign husband (section 1472). By assuring ownership or co-ownership over the house in a separate procedure at the Land Department the foreign spouse prevents a situation where the Thai spouse is able to sell the whole property without the consent of the other spouse (see section 1476 management of Sin Somros above). When the house is regarded as a Sin Somros it must be jointly managed by both spouses and selling would need both spouses consent (unless a prenuptial agreement to this regard has been made).
Section 1475 (Civil and Commercial Code): 'Where any Sin Somros is property of the kind mentioned in Section 456 (meaning immovable property) of this Code or has documentary title, either husband or wife may apply for having his or her name entered in the documents as co-owners'
The second option for protection lies in a right of usufruct, or in case of undeveloped land a right of superficies over the property registered in the foreign spouse's name at the Land Department. A right of usufruct or superficies registered on the title deed is an acceptable protection for a foreign spouse, especially if the money expended on the property comes from what is considered personal property of the foreign spouse.
Practical advice from real lawyers on most common legal issues for expats in Thailand. Samuiforsale provides general Thai legal information and law resources in English over the Internet. The information in Samuiforsale should be used as general Thai legal information but should not be treated as a substitute for specific legal advice concerning individual situations.