This article explains the basics of Thai marriage laws, the creation of marital property between husband and wife and right of management of personal and marital assets during the course of the marriage.
Betrothal under Thai law
(mutual promise to marry in Thailand)Betrothal in Thailand or formal engagement is governed by and laid down in sections 1435 to 1447 of Thailand Civil and Commercial Code. Betrothal is the act of a man promising to marry a woman which is formalized by a gift (called Khongman section 1437) to the Thai woman/ fiancee and could include a gift to the woman's parents (called Sinsod section 1437). A betrothal can be effected only when the man and the women have completed there seventeenth year of age. Khongman becomes personal property of the Thai fiancee during the marriage and will also be listed as a personal property in the asset exhibits in the prenuptial agreement prepared by Thailand law online.
Marriage in Thailand
A marriage in Thailand can take place only if the man and woman agree to take each other as husband and wife, and such agreement is publicly declared before the Registrar in order to have it recorded by the Registrar (section 1458). Marriage in Thailand is effected only on official registration being made.
An agreement governing property between husband and wife can only be made before the registration of the marriage → read more...
Personal and jointly owned property between husband and wife
Laws governing personal property and assets between husband and wife in Thailand specify that property belonging to either spouse before the marriage remains personal property during the marriage (under Thai law personal property is referred to as Sin Suan Tua) and each spouse shall remain the sole manager of his or her personal property.
Civil Code section 1471. Sin Suan Tua (personal property) consists of
- property belonging to either spouse before marriage
- property for personal use, dress or ornament suitable for station in life, or tools necessary for carrying on the profession of either spouse
- property acquired by either spouse during marriage through a will or gift
- Khongman.
Civil Code section 1472. 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. 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. It is not possible to exclude or prevent this or exclude this in a prenuptial agreement.
Civil Code section 1474. Marital jointly owned property between husband and wife (Sin Somros) consists of:
- property acquired during marriage;
- property acquired by either spouse during marriage through a will of gift made in writing if it is declared by such will or document of gift to be Sin Somros (jointly owned);
- Fruits of Sin Suan Tua (personal property).
In case of doubt as to whether a property is Sin Somros or not shall be presumed to be Sin Somros (jointly owned).
Management of marital property during marriage;
A prenuptial contract made before the marriage in Thailand may grant sole management of certain jointly owned property to one of the spouses. Without a prenuptial agreement the properties specified in section 1476 must be managed jointly by the husband and wife.
Civil Code 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:
- 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.
- Creating or distinguishing the whole or a part of the servitude, right of habitation, right of superficies, usufruct or charge on immovable property.
- Letting immovable property for more than three years.
- Lending money.
- Making a gift unless it is a gift for charitable, social or moral purposes and is suitable to the family condition.
- Making a compromise.
- Submitting a dispute to arbitration.
- 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. -------
Management of land or real estate in Thailand during marriage
The most important jointly managed asset between husband and wife in section 1476 is immovable property. However, in case of a Thai foreign marriage the land, and often land and house, will because of foreign ownership restrictions be registered and owned as a personal property by the Thai spouse. It will not become a common property between husband and wife. The Thai spouse will therefore be the sole manager of the property and will be able sell, mortgage or encumber the property without the consent of the foreign spouse.
As often in fact the foreign spouse paid for the real estate property they want to prevent that the property is easily sold or encumbered without their consent. The most common protection to prevent this lies in the registration of a usufruct agreement, or in case of undeveloped land a registered right of superficies over the land in favor of the foreign spouse. 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 as a marital property or even as a personal property of the foreign spouse. In this structure the Thai spouse would not be able to manage or sell the property without the consent of the foreign spouse as it would require mutual consent and joint management (section 1476 'management of Sin Somros' above)
Civil Code section 1475. 'Where any Sin Somros is property of the kind mentioned in Section 456 (meaning real esate) 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'.
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