Protection And Ownership Thai Spouse
How to buy property on your Thai spouse's name
Foreigners can't own land themselves in Thailand but the land department will only allow transfer of ownership of land to a Thai national married to a foreigner after a joint statement that the money expended on the land is personal property of the Thai spouse.
If the money expended on the land is personal property of the Thai spouse the land becomes a personal property of the Thai spouse under the Civil and Commercial Code and not a jointly owned marital property (Sin Somros) between husband and wife.
The procedure at the Land Department is required under a regulation issued by the Ministry of Interior (March 1999) regarding land purchase by a Thai national married to a foreigner. Prior to the regulation a Thai national married to a foreigner was not allowed to own land in Thailand.
- Read Ups: recent article
Management during marriage of a real estate property owned by the Thai spouse
Immovable property which is jointly owned by the spouses must under Thai law be jointly managed (section 1476 of the Civil and Commercial Code) by the spouses unless a prenuptial agreement has been made and states different. In case of a foreign spouse the land cannot be jointly owned therefore it will always be managed by the Thai spouse (e.g. the Thai spouse can sell the property without the consent of the foreign spouse).
The foreign spouse can protect his interest in the property (land and house) through a usufruct agreement or in case of undeveloped land a right of superficies. 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. Foreigner are allowed to have joint or sole ownership in the building upon the land. If the foreigner has registered joint or sole ownership over the house it prevents sole management by one of the spouse over the real estate property as a whole.
Agreements between husband and wife
Section 1469 Civil and Commercial Code: 'Any agreement concluded between husband and wife during marriage may be avoided by either of them at any time during marriage or within one year from the day of dissolution of marriage; provided that the right of third persons acting in good faith is not affected thereby'.
Thai law in section 1469 gives each spouse the right to cancel or void any agreement entered between them during their marriage. In case of a registered right of usufruct or superficies the spouses can't directly cancel real rights like the right of usufruct or superficies (as long as it's registered on the title deed at the Land Department). If it's not on mutual consent it needs a Court order to cancel the usufruct or superficies, therefore making registered real rights an acceptable protection for a foreign spouse.
It is possible to registered the rights to the land prior to the transfer to the Thai spouse. The Thai spouse will in this case obtain the land subject to the registered rights of usufruct, lease or superficies and section 1469 wil not directly apply.
Protection in case of land and house purchase on the name of the Thai spouse during their marriage:
- agree on the registration of a Right of Usufruct in favour of the foreign spouse, or;
- separate land and house and register the structure upon the land as joint or personal property of the foreign spouse. (in this case an additional Right of Usufruct is not possible, but as a general protection keep a record of all documents and payments made to be used as proof in case of a divorce), or;
- land and house is registered in the Thai spouse's name and the foreign spouse accepts full management and ownership by his or her Thai spouse.
In case of undeveloped land registered in the Thai spouse's name the options are:
- agree on the registration of a Right of Superficies in favor of the foreign spouse, or;
- apply for the building permit in the foreign spouse's name (option a an b guarantee full ownership of the structure and use of the land by the foreign spouse, or;
- the building permit is in the name of both spouses and the house becomes a joint property (in this case a Right of Superficies is not possible, but as a general protection keep a record of all documents and payments made to be used as proof in case of a divorce), or;
- the land and building permit is in the Thai spouse's name and the foreigner accepts full ownership and management by his or her Thai spouse.
Division upon divorce
If the usufruct or superficies is canceled in a divorce procedure by the Court this will not per definition mean that the land or value will be allocated to the Thai spouse (even though it is registered as a personal property of the Thai spouse, under Thai law all property acquired throughout the course of the marriage is marital property regardless of how title is held). The land can be allocated to the foreign spouse by the Court . In this case the foreigner has 1 year to dispose of the land.
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Comments
Posted On
Aug 27, 2010Posted By
Garyunder Thai law, may a wife (legally married) sell or borrow money against, from a Bank etc, (using the house as collateral), the house lived in and purchased by foriegn husband, but in her name, (tabien baan),without the husband's signature? I have been told that she requires under Thai law to obtain the husband's signature to do this. How true is this?
Thanks for any help
Posted On
Aug 27, 2010Posted By
ConsultantJoint signatures required section 1476, if the house is considered marital or jointly owned. If it is registered as her personal property she could sign on her own, but if you don't want this you can of course claim it is marital property under the Civil Code. If you paid for it should be easy to proof.
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