Buying land and registering ownership in a Thai spouse's name during marriage (property law)
As foreigners can't own land themselves many foreigners who are living in Thailand and who are married to a Thai national buy land on the name of their Thai spouse. In many legal systems in the world the real property would become a joint or matrimonial property during marriage and most foreigners investing in Thai real estate assume they have a direct claim towards the property in case of a divorce or separation. Unfortunately, Thai law requires that the land (and generally in practice this will often be registration of land and house) becomes a personal property of the Thai national during marriage and not a matrimonial property between husband and wife (irrespective if you are married under Thai or foreign law). The reason for this requirement is that Thai law simply does not allow foreigners to have ownership or co-ownership in land in Thailand.
To prevent a claim from the foreigners towards the land the Thai national married to a foreigner can only register ownership after a letter of confirmation signed by the Thai and foreign spouse at the Land Department that the money expended on the land (property) is personal property of the Thai spouse. This following a regulation by the Ministry of Interior issued in 1999. As a personal property of the Thai spouse the Thai spouse will have sole management over the property and can manage (sell) the property without the consent of the foreign spouse.
Foreigners can however protect their interest in the property.
In case of land and house purchase in the name of the Thai spouse foreigners have the following options:
- (a) agree on the registration of a Right of Usufruct in favor of the foreign spouse, or;
- (b) separate land and house and register the structure upon the land as joint or personal property of the foreign spouse (in this case an additional Right of Usufruct is not possible, but as a general protection keep a record of all documents and payments made to be used as proof in case of a divorce), or;
- (c) land and house is registered in the Thai spouse's name and the foreign spouse accepts full 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:
- (a) agree on the registration of a Right of Superficies in favour of the foreign spouse
;
- (b) apply for the building permit in the foreign spouse's name (option a an b guarantee full ownership of the structure and use of the land by the foreign spouse);
- (c) the building permit is in the name of both spouses and de house becomes a joint property (in this case a Right of Superficies is not possible, but as a general protection keep a record of all documents and payments made to be used as proof in case of a divorce), or;
- (d) the land and building permit is in the Thai spouse's name and the foreigner accepts full ownership and management by his or her Thai spouse.
Often foreigners married to a Thai national and who acquire property in the their spouse's name ask if a right of usufruct or the right of superficies can be cancelled by the Thai spouse if they have entered into such agreement during their marriage. Based on section 1469 of the Thailand Civil and Commercial Code (considering the special relationship between husband and wife) this is possible. Section 1469:
'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 are not affected thereby'.
In case of a registered real right of usufruct or superficies on the title deed the Thai spouse would however need a Court order to have the usufruct or superficies removed from the land title deed. In this stage the parties will likely be in a stage of divorce and if the parties cannot agree on a division of all the properties acquired during their marriage the Court will decide how the properties will be divided.
A usufruct or superficies may be voided by the Thai spouse in a divorce Court procedure but this does not mean the Thai spouse would benefit from it. First of all such voidance would be governed by the section 'Undue Enrichment Code' and the section 'Property between Husband and Wife' of the Civil and Commercial Code. The Thai spouse will not automatically benefit from the cancellation in a divorce just because the property is registered in her name (but paid for by personal property of the foreign spouse). How the properties will be divided in a Court divorce procedure depends on several factors (i.e. keep a record of all your payments).
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