Division of real estate upon divorce in Thailand
A Thai national who is married to a foreigner is allowed to acquire land in Thailand after a joint statement (letter of confirmation) by the couple stating that the money expended on the land is personal property of the Thai spouse and not a Sin Somros (marital property) or personal of the foreign spouse.
As the land and often land and house is registered as a personal property of the Thai spouse the foreigner spouse has no ownership rights based on Thai family laws, ‘property between husband and wife’. Control over personal property (in this case the immovable property) can't be arranged in a prenuptial agreement therefore it will be managed by the Thai spouse solely. Prenuptial agreements in Thailand can only specify management over marital assets, personal assets are always controlled by the owner (read more: personal and common property in a Thai marriage).
How to deal with sole management by the Thai spouse
If protection is required the first protection for the foreign spouse lies in registering 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. In most cases land and house will be registered together in the Thai spouse's name, however, the structures on the land (the house) can be a jointly owned property or even owned as a personal property of the foreign husband.
By registering 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 (based on section 1476 'management of Sin Somros' above). The house will be a Sin Somros therefore must be jointly managed by both spouses and selling would need both spouses consent (unless a prenuptial has been made).
The second option for protection lies in registering a right of usufruct, or in case of undeveloped land a right of superficies against the property in the foreign spouse's name at the Land Department. The right to void any agreement concluded between husband and wife during marriage will would in case of registered real rights need a Court order to remove the usufruct or superficies from the title. A real right of usufruct or or superficies an acceptable protection for a foreign spouse if the money expended on the property comes from personal property of the foreign spouse.
Divorce or the legal ending of a Thai marriage
Upon divorce or dissolution of the marriage in Thailand the couple must make some form of 'credit balance'. What has become joint or partly jointly owned property and how jointly owned property will be divided. if the parties can agree on the division a simple divorce on mutual consent is possible at any Amphur in Thailand.
Under Thai law jointly owned property will in principle be divided equally between the spouses. In a contested divorce a Court will divide property between husband and wife to the law and based individual circumstances. Often the couple will have a mix of personal and jointly owned property and a prenuptial and administration of your personal and jointly owned property could help in case of a contested divorce. Keeping a form of administration of personal assets and payments you made from personal property during marriage would make division of assets in a divorce more simple.
Even though land in Thailand or land and house is registered as personal property of the Thai spouse, this must be included in the credit balance and division of the couple assets if the source of the money comes from the foreign spouse.
Debts exceeding the couple's marital property will be divided between the spouses in proportion to which each spouse caused them to belong to the matrimonial community (an exception may be made). Personal debts remain personal debts.
