Prenuptial Thailand, Legal Thai prenup, sample in Thai English (pre-marriage service)

Under Thai marriage laws personal property or property owned by the parties prior to their marriage remains personal property during the course of the marriage and management of personal property remains with each spouse. A prenuptial agreement is not required to achieve this. The benefits of a prenuptial in Thailand lies primarily in prooof of what personal property of each spouse is at the time of marriage (this will be listed in an attachement to the prenup), a prenup could give management of jointly owned marital property to one of the spouse (section 1476 of the Civil and Commercial Code) and the prenuptial could state potential division of marital assets should the marriage later be dissolved at death or divorce.

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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.

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 by law creates jointly owned property (Sin Somros) between husband and wife or marital property. 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 gift, and old-age pension plans (although upon divorce the other spouse could claim a share of the pension built up during marriage are personal property) become 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 specified jointly owned 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'. -------

As the most important jointly owned asset in Thailan covered by section 1476 is immovable property a prenuptial agreement can't cover the management of land in Thailand. Land, and in practice this will often be land and house, will be registered in the Thai spouse's name as a personal property and not a joint property (Sin Somros), therefore the Thai spouse will be the sole manager of the property (e.g. the Thai spouse can sell the property without the consent of the foreign spouse). Often the foreigner spouse protects his or her interest in the property by entering into separate agreements with the Thai spouse (generally a usufruct or superficies). Section 1469 should be noted:

Section 1469 of the Thailand 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'.

The above section 1469 will have limited impact on registered real rights such as usufruct. In case of a registered real right against the property the Thai spouse would need a Court order to cancel the usufruct (or superficies), therefore making registered real rights like a usufruct or superficies an acceptable protection for a foreign spouse if the money expended on the property comes from personal property of the foreign spouse.

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. Structures on the land (the house) can be a jointly owned property between husband and wife, or owned as a personal property of the foreign husband. By registering ownership or co-ownership over the house 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 (i.e. section 1476 'management of Sin Somros' above). The sale and purchase for a house or building permit could state the name of the foreign spouse. In case of undeveloped land a right of superficies could be created in favour of the foreign spouse.

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 protection lies in registering a right of usufruct, or in case of undeveloped land a right of superficies over the land in the foreign spouse's name at the Land Department. The above section 1469 (the right to void any agreement) will have limited impact on registered real rights (as long as they are registered on the title deed at the Land Department). In this case the Thai spouse would need a Court order to cancel the usufruct or superficies, therefore making registered real rights like a usufruct 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;

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 (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 our opinion, even though in some cases 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.

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 a form of administration of personal and common assets will be required to prevent disputes over property 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 substantial 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 the concerning jurisdiction (i.e. there is no universal prenuptial agreement). 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).

สัญญาก่อนสมรสฉบับนี้ ได้ทำขึ้นเมื่อวันที่..........................พ.ศ.2553

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

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

Marriages and prenuptial agreements Thailand

Management of property during marriage;

Divorce;