Real estate in a Thai-foreign marriage
A Thai national married to a foreigner can only legally register ownership over land in Thailand after proof is submitted to the Land Department that:
- the money expended on the land is personal property (Sin Suan Tua) of the Thai national according to sections 1471 and 1472, and/ or;
- confirm jointly in a land office certify letter that the money expended on the land (property) is personal property of the Thai spouse.
The land office must register the land (and in practice this will often land and house) as a personal property of the Thai spouse and not as a marital property between husband and wife. As a personal property the Thai spouse will have sole ownership and management right over the property and she can sell or mortgage the property without the consent of the foreign spouse.
Protection options
Foreigners can create a registered interest in the property to protect their interest in the property. The following options are available to the foreign spouse:
- agree with the Thai spouse on the registration of a right of usufruct over the property in favor of the foreign spouse;
- separate land and house and register the building upon the land as joint or personal property of the foreign spouse (this may not be practical as the land and house have to be transferred separately), or;
- land and house is registered in the Thai spouse's name and the foreign spouse accepts sole management and ownership by his or her Thai spouse.
In case of undeveloped land purchased by the foreign spouse in the Thai spouse's name the options are:
- agree on the registration of a right of superficies in favor of the foreign spouse ;
- apply for the building permit in the foreign spouse's name (1 and 2 guarantee ownership rights in the structure and use of the land by the foreign spouse);
- the land and building permit is in the Thai spouse's name and the foreigner accepts sole management rights by the Thai spouse.
Cancellation of registered rights
Can a right of usufruct (or superficies) between husband and wife be canceled ?
Usufruct established during the marriage will not supersede the system of property between husband and wife (section 1469 of the Thailand Civil and Commercial CodeSection 1469: Any agreement concluded between husband and wife during marriage may be cancelled 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 are not affected thereby.). A usufruct between husband and wife created during the marriage can be voided, but the Thai spouse can after registration not simply cancel the usufruct whenever she likes. After completion and registration on the land title deed it would require a court order to remove the usufruct from the title deed. The same applies to a right of superficies created during marriage.
In a divorce the right of usufruct can be voided by a court but that does not automatically mean that the Thai spouse will benefit from it. How the marital assets in a divorce will be divided depends on several factors, but is based on the system of property between husband and wife, and not based on any agreements concluded between husband and wife during the marriage (e.g. the usufruct). In a divorce in Thailand land registered as a personal asset of the Thai spouse, but paid for with personal property of the foreign spouse, can be allocated to the foreign spouse with the obligation to sell the land within 1 year.
Related: land registration procedure | Thailand marriage laws | Thai divorce procedure | right of usufruct agreement | right of superficies agreement | Thailand prenuptial agreement |
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