Land owned as a personal property of a Thai spouse
Thailand land acquisition by a Thai national married to a foreigner
Foreigners can't own land in Thailand, but the Land Registry allows a Thai national married to a foreigner to own land after a joint statement together with his or her foreign spouse or proof that the money expended on the land/ real estate is personal property of the Thai spouse (read up on the procedure). This effectively means that the land (and in practice often land and house and in some cases condominium) is purchased as a personal property of the Thai spouse and not a marital and jointly owned property between husband and wife (Sin Somros). The foreign spouse has therefore no claim to the property and the Thai spouse has the right to sell, mortgage, transfer or exchange the property without consent of the foreign spouse.
Management during marriage of a real estate property owned by the Thai spouse
Only immovable property that is jointly owned by the spouses must under Thai law be jointly managed by the spouses (section 1476 of the Civil and Commercial Code), unless agreed differently in a prenuptial agreement. In case of real estate purchase by a Thai national married to a foreigner the land cannot become a marital property and therefore it will always be owned and managed by the Thai spouse as a separate personal asset.
Note that it's only the land part that is restricted for foreign ownership, not the structures upon on the land or immovable property as a whole. Joint ownership in the house separate from the land would prevent sole management by one of the spouse over the real estate property as a whole as in this case the law requires joint management by husband and wife. If land is registered on the name of the Thai spouse and subsequently a house is build the house could be legally considered marital property, but this will not prevent the Thai spouse as the owner of the land from managing the property.
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'.
Section 1469 means that property between husband and wife is governed by the statutory system of property between husband and wife under the Civil and Commercial Code. Any agreements or gifts made during the marriage between husband and wife cannot change the statutory system of personal and marital or property owned between husband and wife.
For the same reason a post-nuptial agreement as opposed to a prenuptial contract is not allowed under Thai law. This system in Thai marriage laws is not different from many Western countries.
Also the Ministerial Regulation and 'letter of confirmation' by which land has been registered as a personal property of the Thai spouse cannot supersede the system of property between husband and wife as laid down in the Civil and Commercial Code. This in effect means that even though real estate in Thailand has been registered as a personal property of the Thai spouse it will not per definition be allocated to the Thai national in the event of a divorce. In the event of a contested divorce the courts in Thailand must divide the properties according to the Civil Code's system, irrespective the content of the certify or confirmation letter signed during the marriage and registration of the land as a personal property of the Thai national.
Protection in case of land and house purchase on the name of the Thai spouse during their marriage:
What foreigners often want to prevent (because they in fact paid for the property) is sole management by the Thai spouse. They want to prevent that the land is easily sold or encumbered without their consent. This can be done through a usufruct agreement in case of land and house or in case of undeveloped land a right of superficies. Also a usufruct or superficies between husband and wife created during the marriage can be cancelled in a divorce, but the Thai spouse cannot directly cancel the right of usufruct or superficies (as long as it's registered on the title deed). If it's not on mutual consent the Thai spouse would need a Court order to have the usufruct or superficies removed from the title deed therefore making registered real rights such as usufruct and superficies an acceptable protection for a foreign spouse.
The options are:
- have proof of where the money came from and have your wife sign a declaration,
- agree on the registration of a right of usufruct in favor 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 (depending on the source of the funds option a an b give joint or sole ownership of the house to 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
Shifting personal property from one party to another or encumbering personal property by agreement between husband and wife during marriage can be corrected and voided in case of separation and division of assets in a divorce based on section 1469 Civil and Commercial Code. This also means that real estate property registered during marriage as a personal property in a Thai spouse's name will not automatically be be allocated to the Thai spouse in a divorce by a Thai court if the purchase actually came from the personal property of the foreign spouse, regardless the procedure of registration of the property in the Thai national's name. The land or real estate can even be allocated in a divorce settlement to the foreign spouse by the Court. In this case the foreigner has 1 year to dispose of the land.
