Marriages and prenuptial agreements Thailand
Under Thai marriage laws personal property or property owned by the parties prior to the marriage remains personal property during the course of the marriage and management of personal property remain with each spouse. A pre-marriage contract in the form of a prenuptial agreement could give management of jointly owned marital property listed in section 1476 of the Civil and Commercial Code to one of the spouse. Without a prenuptial agreement such marital property listed must be managed jointly by the husband and the wife.
A prenuptial agreement in Thailand only deals with assets and management of marital property listed in section 1476 of the Civil Code. The content of the prenuptial cannot be against the law or good morals, nor can the relations between husband and wife as regards to marital assets be governed by foreign law. The criterion in section 1465 of the Thailand Civil Code governing prenuptial agreements in Thailand 'against the law or good morals' means that any unfair terms or terms in the prenuptial agreement against the statutory legal system of 'property between husband and wife' will quickly be set aside by a court in Thailand as against the law, public policy or good morals, therefore unenforceable in a court. From a Thai legal perspective it is possible to include various clauses in the prenuptial however enforcing it in a court during a contested divorce is step 2. |
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A basic introduction to the legal system of marriage in Thailand and the property between husband and wife:
Betrothal
Thai marriage laws legally recognizes in section 1435 to 1447 the custom of 'betrothal' in Thailand, the act where a man promises to marry a woman which is formalized by a gift to the woman (called Khongman) and could include a gift to the woman's parents (called Sinsod). In some traditional Thai families this is still expected and subject to negotiation. Khongman will remain personal property of the Thai spouse during the marriage and will also be mentioned in the Thai-English prenuptial agreement.
Personal and jointly owned marital property under Thai law
Thai law specifies that property belonging to either spouse before the marriage remains his or her personal property during the marriage, and each spouse shall remain the sole manager of his or her personal property. 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).
| Section 1472 of the Thailand Civil and Commercial Code. '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'. |
A marriage in Thailand creates jointly owned marital property (Sin Somros) between husband and wife. In general 'benefit and income' of each spouse during marriage will under Thai law become jointly owned property between 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.
In principle property acquired by inheritance, legacy or gifts are personal property.
As a simple example how the 'benefit and income' rule in Thailand works; if you have 100,000 Thai baht (THB) in your bank account at the time of marriage and 5 years later you have saved an additional 15,000 THB from your income (profession or business) and you received interest over this amount of 5,000 THB and the total amount in your bank account has grown to 120,000 THB, then, upon divorce your spouse could be entitled to up to half of the increase (i.e. 10,000 THB). In the same situation if the amount has increased with another 50,000 THB from an inheritance, this in principle becomes a personal property (Sin Suan Tua) of the person receiving the inheritance. In this case; even though your bank account has in this case increased to (100,000 + 15,000 + 5,000 + 50,000 = 170,000 THB) your spouse could upon divorce be entitled to not more than 10,000 THB.
Management of property during marriage;
A marriage prenuptial contract in Thailand may grant the management of certain jointly owned property (Sin Somros) to one of the spouses. Without a prenuptial agreement 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 inhabitation, 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 one can be made only by one spouse without having to obtain consent from the other'. ------- |
The most important jointly owned asset in a marriage in Thailand covered by section 1476 is immovable property. In case of a foreigner married to a Thai national the property will often be owned by the Thai spouse as a personal property and not a joint property (Sin Somros). The Thai spouse will be the sole manager of the property and is able sell the property without the consent of the foreign spouse.
Land is restricted for foreign ownership and a foreigner married to a Thai may not have any claims to land based on the system of property between husband and wife in the Civil and Commercial Code. 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 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 (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 second option for the foreign spouse lies in registering a right of usufruct, or in case of undeveloped land a right of superficies over the land in favour of the foreign spouse. The right to void agreement agreements between husband and wife (section 1469 Civil Code) has limited impact on registered rights. A Thai spouse owner would need a court order to cancel a registered right of usufruct or superficies, therefore making usufruct or superficies an acceptable protection for a foreign spouse, but not full proof.
Divorce;
Upon divorce or dissolution of the marriage under Thai law the couple must make some form of 'credit balance', what has become joint or partly joint owned property and how jointly owned property will be divided. Jointly owned property will in principle be divided equally between the spouses. A divorce in Thailand can be by mutual consent if the spouses agree on a divorce settlement or agreement or the divorce shall be decided by the Court and the Court will divide the community property according to the law and individual circumstances.
In practice property between husband and wife will consist out of a mix of personal and marital property and the valuation is complex. In a divorce a court has the discretion to value property between husband and wife based on individual circumstances. A prenuptial agreement anticipates on this situation and also some form of administration of personal and common assets during the marriage could help to prevent disputes over properties between husband and wife.
When you marry a Thai national in Thailand this may have consequences for assets you have in other jurisdictions. If you have assets in another country it is recommended to seek local legal advice or from a legal professional in Thailand who is qualified to advice under that jurisdiction. Most countries allow a choice of law option by the parties, i.e. if a choice of law is correctly made Thai law (governing property of husband and wife) may cover and apply on the assets outside Thailand and vice versa, however in Thailand this can't cover immovable property.
Recommended reading:
Sample format Thai English prenuptial agreement
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THAI/ ENGLISH PRENUPTIAL AGREEMENT
สัญญาก่อนสมรส
THIS PRENUPTIAL AGREEMENT is made on the __ day of _______2010.
สัญญาก่อนสมรสฉบับนี้ ได้ทำขึ้นเมื่อวันที่..........................พ.ศ.2553
BY AND BETWEEN / โดยและระหว่าง:
Mr. _____________, __ years of age, a ____ national and holding, passport number, ____ residing at _________, hereinafter referred to as the “Prospective Husband” of the one part, a copy of the passport is attached hereto as Exhibit A.
________________, ต่อไปในสัญญานี้ เรียกว่า “ฝ่ายชาย” ฝ่ายหนึ่ง รายละเอียดสำเนาหนังสือหนังสือเดินทางปรากฏตาม เอกสารหมาย ก แนบท้ายสัญญา
AND และ
Ms. ____________, ___ years of age, a Thai national, ID-card number ________, residing at __, Moo ___, _______ Sub-district, ____ District, ______ Province, hereinafter referred to as the “Prospective Wife” of the other part, a copy of the ID Card and household registration booklet are attached hereto as Exhibit B.
, ต่อไปในสัญญานี้ เรียกว่า “ฝ่ายหญิง” อีกฝ่ายหนึ่ง รายละเอียดสำเนาบัตรประจำตัวประชาชนและสำเนาทะเบียนบ้า นปรากฏตาม เอกสารหมาย ข แนบท้ายสัญญา
CONTINUE FULL THAI PRENUPIAL FORMAT TEMPLATE
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