Thai marriage and marital property
Personal property and jointly owned marital property
THAI MARRIAGE LAWS specify that property belonging to either spouse before the marriage and khongman (section 1437) remains personal property during the marriage, and each spouse shall remain the sole manager of his or her personal property (Section 1473).
Section 1472: 'if personal property during the marriage has been exchanged for other property, other property has been bought or money has been acquired from selling it, such other property or money acquired shall remain personal property (Sin Suan Tua)'.
The above section means that such property acquired remains personal property and is not subject to division of assets when the marriage ends, obviously this requires some form of (yearly) administration and accounting of marital and personal property.)
Personal property (Sin Suan Tua) under Thai marriage laws (section 1471) consists of:
- property belonging to either spouse before marriage
- property for personal use, dress or ornament suitable for station in life, or tools necessary for carrying on the profession of either spouse
- property acquired by either spouse during marriage through a will or gift
Jointly owned matrimonial property
A marriage in Thailand creates jointly owned marital property (Sin Somros) of husband and wife. Property acquired during the course of the marriage (subject to the above section 1472) and 'fruits' of personal property during marriage will become jointly owned property between husband and wife.
Jointly owned property (section 1474) between husband and wife (Sin Somros) consists of:
- property acquired during marriage;
- property acquired by either spouse during marriage through a will of gift made in writing if it is declared by such will or document of gift to be Sin Somros (jointly owned property);
- fruits of Sin Suan Tua (personal property).
The following is an important part of section 1474, as of In case of doubt as to whether a property in Sin Somros (jointly owned) or Sin Suan Tua (separate personal asset) it shall be presumed to be Sin Somros (meaning jointly owned and subject to an equal division when the marriage ends). One of the reasons to do a prenuptial agreement in Thailand is that is lists personal property and clearly separates it from marital property.
Management over property during marriage;
A prenuptial contract made before the marriage in Thailand may grant sole management of certain jointly owned property to one of the spouses. Without a prenuptial agreement the properties specified in section 1476 must be managed jointly by the husband and wife.
Section 1476. 'In managing the Sin Somros in the following cases, the husband and wife have to be joint manager, or one spouse has to obtain consent from the other:
1. Selling, exchanging, sale with the right of redemption, letting out property on hire-purchase, mortgaging, releasing mortgage to mortgagor or transferring the right of mortgage on immovable property or on mortgageable movable property.
2. Creating or distinguishing the whole or a part of the servitude, right of habitation, right of superficies, usufruct or charge on immovable property.
3. Letting immovable property for more than three years.
4. Lending money
5. Making a gift unless it is a gift for charitable, social or moral purposes and is suitable to the family condition.
6. Making a compromise.
7. Submitting a dispute to arbitration.
8. Putting up the property as guarantee or security with a competent official or the Court.
The management of the Sin Somros in any case other than those provided in paragraph above can be made only by one spouse without having to obtain consent from the other'. -------
Management over real estate during marriage
The most important jointly managed asset between husband and wife in section 1476 is immovable property. However, in case of a foreigner married to a Thai national, land in Thailand (often land and house) will because of foreign ownership restrictions be owned by the Thai spouse as a personal property. It will not be a common property governed by section 1476 and the Thai spouse will be the sole manager of the property. The Thai spouse is able sell, mortgage or encumber the property without the consent of the foreign spouse.
Note that it is only the land aspect of the property that is restricted for foreign ownership, not the structures upon on the land. Structures on the land (the house) can be a jointly owned or even personal of the foreign spouse. Co-ownership or ownership by the foreign spouse over the building separate from the land restricts sole management by the Thai spouse. The Thai spouse would not be able to manage or sell the whole property without the consent of the foreign spouse (pursuant section 1476 'management of Sin Somros' above).
Section 1475: '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 most common method for the foreign spouse to protect his interest lies often not in registration of ownership over the building but in registering a right of usufruct, or in case of undeveloped land a right of superficies over the land in favor of the foreign spouse. In addition, when the property is purchased with personal property of the foreign spouse, or marital assets of husband and wife, a witnesses, notarized declaration could be made by the Thai spouse to this regard and the foreign spouse should keep evidence of the source of funds used for the acquisition.
Divorce and division of assets in Thailand
Under Thai divorce laws only common property must automatically be divided in equal shares. The first question in a divorce is if an assets is a personal or a jointly owned marital asset. Having a prenuptial agreement and keeping a form of marital accounting during the marriage will help when negotiating a division of assets and will greatly improve the legal process in case of a divorce, especially when a divorce becomes contested and has to go to court. Also upon death of a spouse (Thai inheritance law) the common property must be divided first and distributed to the surviving spouse before personal assets can be distributed to the statutory heirs or inheritors under a last will.
- prenuptial agreement
- usufruct and superficies
- usufruct in a Thai marriage
- division of the marital home
- agreements between husband and wife
Article source: Thailand Law Online