The Marital Property Rights Between a Foreigner and a Thai.
This blog reads best while playing Elvis softly in the background…. and repeat after me….
♪ ♫ ♪ ♫ “Wise men say, only fools rush in, but I can’t help falling in…” ♪ ♫ ♪ ♫
As a foreigner, what are your rights regarding property ownership if married to a Thai national? …. Answer: if you purchase any property in Thailand after you marry then it becomes a joint marital asset for both EXCEPT if it is land. A foreigner cannot own land in Thailand so the land will become a personal asset of the Thai spouse… read on.
If you are married or about to marry a Thai then the marital property rights are defined by the Civil and Commercial Code of Thailand. These laws had mainly been written for Thai nationals (Thai marrying Thai) and because a foreigner cannot legally own land in Thailand, there are additional issues regarding marital property rights.
A foreigner cannot own land in Thailand. However, a foreigner can legally and solely own a condominium unit, therefore, the title deed will have his/her name on it. This is on the condition that there is no more than 49% foreign ownership of the units in the building. Please note, if you were married before purchasing the condo and your name is the only name on the condo title deed, you still need a letter of consent to sell from your Thai spouse because it is deemed as a joint marital asset. If you were married after purchasing the condo, it is considered a personal asset (sin suan tua – see below for meaning) of yours so you are free to sell and transfer to another without consent from your Thai spouse.
The Marital Property Rights between a Foreigner and a Thai
As a married couple, any property bought in Thailand such as land or land with house combined cannot be jointly owned by you (the foreigner) and your Thai spouse. Any land acquired during the marriage cannot be a joint marital asset (Sin Somros, Thai phrase means joint ownership of the asset), the land will be a personal asset (Sin Suan Tua, Thai phrase means one partner of the marital relationship has sole or personal ownership of the asset) of your Thai spouse as defined by Section 1471 and 1472 of the Civil and Commercial Code. This will occur at the Land Office where the property will be registered in the Thai spouse name and you would have to sign a document to confirm that the property belongs to your Thai spouse and therefore, is not a joint marital asset (sin somros) but a personal asset (sin suan tua) of your Thai spouse.
The problem is that this gives your Thai spouse full management rights over the property and they can sell, mortgage or otherwise encumber the property to their liking without the need for your consent. This has over the years created enormous problems in Thailand where the Thai spouse had used the property as a guarantee for debts.
If you have not heard or seen any horror stories about a foreigner losing more than his pants while in Thailand then you have lived a sheltered life. Therefore, no matter if “she (or he) is different”, use your big head for thinking 🙂
However, there are various options that will and can protect you (the foreigner) by NOT allowing the Thai spouse to have full management rights over the property… see below.
Before you buy any property in Thailand it is always best to speak to a certified Thai property lawyer about the options you have and how best to protect your rights. These options are registering a superficies, usufruct agreement or a prenuptial agreement with the land department at the same time of transferring the property into the name of your Thai spouse. Whatever you decide is the best for you, a reference to any of the 3 will be added to the back of the title deed (chanote).
The Foreigner’s Options may be:
1. Superficies – Place the land in your Thai wife’s name and build a house on the property and register a superficies over the property for the house. You now jointly own the house but she owns the land. Superficies (meaning) is “a right to build upon another’s land or in essence to register a house separate from the relevant land therefore permitting the building of a structure or a plantation”.
2. Usufruct Agreement – Register a usufruct agreement at the Land Office over the property giving you the right to live in the property so in the event of a divorce you will still have the right to live in the house. It’s very difficult to sell a property with someone living in it under a usufruct.
3. Prenuptial Agreement – Speak to your lawyer about a prenuptial agreement before you register your marriage in Thailand and start buying a property. Note that the prenuptial agreement needs to be handed in at the same time as your marriage registration application.
Please refer to this blog for more info about the options above: Buying Property in Thailand – Important Information for the Foreign Buyer
Should you seek CERTIFIED Thai legal advice before marrying a Thai and planning to purchase a property? ……. ABSOLUTELY!!
Happy “sin somros” and “sin suan tua” from the Home2go Team 🙂
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