Marital home and division of the house in a divorce
Real estate ownership in an foreign/ Thai marriage
As it is prohibited for foreign nationals to own land in Thailand it has long been illegal for a Thai national married to a foreigner to acquire land because through matrimonial property laws the foreign spouse would obtain foreign ownership in land as property of husband and wife. It is only since a Ministry of Interior regulation dated March 23 1999 that it is allowed for a Thai national married to a foreigner to purchase land but the land must become a non-marital or separate personal property of the Thai spouse.
The regulation requires a strict procedure to prevent the land from becoming a jointly owned property of husband and wife. In the registration of ownership procedure it must be confirmed that all money paid for the land is personal property of the Thai spouse and therefore the land will remain a personal property of the Thai spouse (section 1472). Only in this case the land officer is allowed to register ownership of land as a personal property on the name of a Thai national married to a foreigner.
What does this mean in a divorce.
Under Thai marriage and divorce laws only common property must be divided in equal shares upon termination of the marriage, non-marital (personal) assets do not have to be divided. When dividing assets between husband and wife in a divorce (or death) the first question is if an asset is a personal or common property. When the above procedure has been followed the foreigner cannot simply ask for division of the house as part of the common property as the house is registered as a personal property of the Thai spouse and therefore must not be divided (the foreign spouse has signed away his rights in the land office certify letter). Only if the official land acquisition procedure for a Thai national married to a foreigner not has been followed the land or land and house is considered a common property between husband and wife and must be divided upon termination of the marriage (unless the Thai spouse can proof the home is purchased with her personal property). In practice this situation can only be achieved if the Thai spouse has given false information to the land office officials when registering ownership over the property (not declaring the marriage with the foreigner). In such cases the Land Departments enforcement and punishment measures in land holding as an agent for a foreigner could be applied and used against the foreigner and his Thai spouse, and if found guilty they are liable for fines and even imprisonment.
The marital home in Thailand, registered as a personal asset of the Thai spouse, will not be divided equally as it is not automatically considered a common property between husband and wife but a non-marital asset of the Thai spouse.
Personal property of the foreign spouse
LAND AND HOUSE HAS BEEN REGISTERED AS A PERSONAL PROPERTY OF THE THAI SPOUSE
Often the land and house has been purchased with money belonging to the personal assets of the foreign spouse and is given to the Thai spouse to purchase the real estate property. The foreigner signs away his rights to the property in the certify or land office confirmation letter. The marital home could be part of the division of assets depending on the individual circumstances (e.g. the land has been registered as a personal asset of the Thai spouse and the house is built during the marriage by husband and wife). The foreigner could also revoke his gift in a divorce procedure, or if this subject is governed and anticipated in a prenuptial agreement made before the marriage he could use this as a claim for compensation. For example the money expended on the property must be made up to him by a share from the other common assets.
Divorce and marital home
Even if the correct procedure has been followed and the property has been registered as a personal property of the Thai spouse it does not in all cases mean that there are no legal grounds in contested divorce for the foreigner to claim revocation of the gift or compensation for the money expended on the property. Foreigners who invested in real estate in Thailand in a Thai marriage should not always write off their investment in a divorce. In a divorce on mutual consent or contested divorce they should not settle for less than entitle to. The best advice is to make a solid prenuptial agreement before the marriage, keep evidence of your finances and payments made during the marriage, and if your Thai spouse behaves improperly and gives reason for divorce keep evidence of this.