Common Property and rights of land in marriage!

[Guest]

From Divorce law and given in a link by Mailuk-

 

FAMILY LAW OF THAILAND

By Wimolsiri Jamnarnwej

 

Common Property ("Sin Somros")(29)

 

Common Property consists of:

 

(1) all property acquired by either spouse during marriage;

(2) property acquired by either spouse during marriage through a will or gift in writing if it is declared in such will or document of gift that the property will be owned jointly by both husband and wife.

(3) Fruits of private property.

 

In case of doubt as to whether a property is private property or common property, the law presumes that property to be common property.

 

HOW TO MANAGE PROPERTY?

 

The husband and wife can enter into an ante-nuptial agreement concerning the management of their property at the time of registration of their marriage. There are three limitations to the ante-nuptial agreement.

 

(1) the agreement must not be contrary to the public order or immoral;

(2) the agreement must not provide that such property is to be governed by foreign law.

(3) the agreement must be in writing, signed by both spouses and by at least two witnesses and registered at the time or registration of the marriage.

 

After marriage, the ante-nuptial agreement cannot be modified or rescinded except by authorization of the court.

 

If the couple do not enter into the ante-nuptial agreement, the management of their property will be governed by general rules of Family Law as follows:

 

1. Either spouse has the right to manage his or her private property.(30)

2. Both spouses must manage the common property jointly or with the consent of the other spouse in any of the following cases:(31)

(1) Selling , exchanging, selling with right of the redemption, letting and selling on the term of hire-purchase, mortgaging, releasing mortagage or transferring the right of mortagage on immovable property or movable property which is mortgagable;

(2) Creating or extinguishing the whole or a part of a servitude, a right of habitation, a right of superficies, a usufruct, or a charge on immovable property;

(3) Letting immovable property for more than three years;

(4) Making a loan of money;

(5) Making a gift, except with due regard to the family's station in life for charitable or social purpose, or in compliance with a moral duty;

(6) Making a compromise;

(7) Submitting a dispute to arbitration;

(8) Putting up property as guarantee or security to the official or court.

 

Part 7

 

_______________________________________________________________

 

Can one use Thai law and ante-nuptial to control property in their marriage between a falang and Thai?

 

By following Thai law in reguards to managing common property it sounds like a Falang can control the selling and use of property as long as they register their marriage and use of comman property together, right?

 

Interesting stuff on that link you gave in the thread on Divorce!

 

SkiBum

[chilli13]

good info sure by mailuk, but I still think we end up in all case with the usual farang can control zip in the LOS.

but please bring out the law guys & the more experinced in these matters

[jasmine]

Hi,

 

Good information.

 

Whatever it is written, in the land case, the women who are married to foreigners are supposed to have written document from the "spouse" to disclaim the rights to the property. I just bought a piece of land in my last trip in April and Hubby signed a document stated that the money was mine alone. However, it can be willed to him but he must dispose the property in 90 days if inherited.

 

Many Thai women bought land by never mentioned their "foreign spouses" and that is a "lie" according to the Thai law and the government can come in and "manage" the land for them. I don't trust the word "manage" in the law. ::

 

The same case as my daughter who is born of American parents (I am the US citizen) who can inherit from her Thai grandma, uncle but the same rules apply, if it is the land, she must dispose it withinn 90 days, if not, the government will dispose it for her .

 

On other joint properties, the law is not written clearly but the bottom line is, the "foreigners do NOT have rights to own land.

 

Jasmine

[MadStockBroker]

Good info.

 

I have also know of cases when a married thai lady to farang bought property and the husband had to sign a disclaimer to rights on the land.

 

However I believe the situation for a condo is much less clear. Here the foreigner can own in his name. So if a foreigner and thai are married and the foreigner buys a condo legally in his own name...what would be the claim by his wife on that condo after a divorce??

[jasmine]

[color:"red"] So if a foreigner and thai are married and the foreigner buys a condo legally in his own name...what would be the claim by his wife on that condo after a divorce??

 

[/color]

 

Free information from my lawyer brother.

 

The condo is the community property if acquired during the marriage whether she generates any income form outside source or not.

 

Jasmine

[MaiLuk]

>>Can one use Thai law and ante-nuptial to control property in their marriage between a falang and Thai? <<

 

Interesting question. Thai law prohibits a farang from owning realestate. So if H and W buy a piece of realestate, the farang cannot be a half owner so they have to put it into wife's name.

 

Thai marriage law says spouse of thai girl owns 50% of any realestate she bought during marriage. But in the case of a farang husband, the divorce law conflicts with the restriction on a farang owning realestate. The web site does not state how this conflict in the law is resolved.

 

If you and wife agreed in writing prior to your marriage (a prenuptial agreement) that any realestate bought in her name would be 50% yours, this would also be in conflict with the "farang no own land" law.

 

The website says "(1) the (prenuptial) agreement must not be contrary to the public order or immoral". This gives the wife, in a divorce case, a good argument that the prenuptial should not be enforced since the "farang no own land" rule might be seen as a good public order type of rule that cannot be trumped by a prenuptial.

 

The "farang no own land" rule may not be so clear cut either. Some farang can qualify to own realestate.

 

If you are planning on buying realestate then you need to see a thai lawyer familiar with thai/farang marriages. An obvious workaround to all this is to set up a thai corporation with the usual powers of attorney or share transfer agreements and purchase your realestate that way. Then again nothing is all that obvious so see a lawyer and hope you post here about it.