Matrimonial property law in Thailand
Thai marriage and assets of husband and wife
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.
Personal property in a Thai marriage
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 (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: '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'.
Marital or common property
Section 1474 marital assets (matrimonial or common jointly owned property between husband and wife) is under Thai law called 'Sin Somros' and consists of:In case of doubt as to whether a property is Sin Somros (jointly owned) or not it shall be presumed to be Sin Somros.
- 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;
- fruits of Sin Suan Tua.
Section 1474 last sentence means that 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 that fall under sections 1471 and 1472 of the Civil and Commercial Code, but some proof that a property is personal property will be required. When the marriage ends due to death or divorce marital property will be divided and distributed in equal shares between husband and wife. Separate personal property remain with each spouse.
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 under Thai law not entitled in a divorce to the increase the other spouse received by the inheritance.
Management of property during marriage
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.
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:
The management of the Sin Somros in any case other than those provided in paragraph one can be made by one spouse without having to obtain consent from the other'.
- 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.
- Creating or distinguishing the whole or a part of the servitude, right of habitation, right of superficies, usufruct or charge on immovable property.
- Letting immovable property for more than three years.
- Lending money
- Making a gift unless it is a gift for charitable, social or moral purposes and is suitable to the family condition.
- Making a compromise.
- Submitting a dispute to arbitration.
- Putting up the property as guarantee or security with a competent official or the Court.
Management of real estate during marriage
A foreigner married to a Thai is not allowed to have any form of joint ownership in land together with his or her Thai spouse. Any land acquired in Thailand during the course of the marriage with a foreigner cannot be a Sim Somros or marital asset according to section 1474 but must become a personal asset of the Thai spouse accorsing to section 1471 and 1472. As a non-marital asset it will be managed by the Thai spouse solely. In practice often land and house in Thailand will be registered as a personal property of the Thai national. 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 or encumber the property without the consent of the foreign spouse (section 1476 does not apply). In addition, as a non-marital asset at death or in a divorce it will not automatically be 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 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 giving sole management of Sin Somros listed in 1476 to one of the spouses).
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.
See also:
- Prenuptial and division of assets in a divorce
- Land acquisition by a Thai spouse married to a foreigner
- Usufruct in a Thai marriage
- Divorce and division of real estate owned by the Thai spouse
- Agreements between husband and wife
- Letter of Confirmation land acquisition land office procedure
- Marriage and family laws law translation
