Marital property and assets.
Knowing one’s rights in marriage is important, especially when it comes to property. The property between husband and wife is largely governed by the Civil and Commercial Code and can be further modified by writing up a prenuptial agreement.
In general, assets and income of each spouse acquired during marriage will under Thai law become jointly owned property. The law fortunately accounts for personal property acquired before marriage – this remains personal property (“Sin Suan Tua”) even after the marriage and is resilient to further modification or exchange down the road.
Marital or common property
Assets acquired by the couple during marriage are in Thai legal jargon referred to as “Sin Somros” and include property acquired during marriage (including property acquired by either spouse through a will or gift specifically made to be Sin Somros) and benefits coming from the personal property.
Overall, all above assets and properties are jointly owned regardless of who holds the title, with the exception of personal property (proof may be required). Upon termination of the marriage, whether by death or divorce, the marital property will be divided and distributed in equal shares.
Management of marital property
With assets also comes responsibility over their management. While personal property will be under management of each spouse, the marital property requires joint management (unless otherwise stated in prenuptial agreement). In other words, certain legal acts with regards to certain marital property must be managed by both spouses and require join consent. Examples of such cases are letting out property for hire, creating servitude/superficies/usufruct on immovable property, lending money and others.
Real estate issues in foreign-Thai marriage
The situation of joint property is different in marriages where a Thai national marries a foreigner. The foreigner is not allowed to have any form of joint ownership of land and any land acquired throughout the marriage cannot become marital property of the couple, but solely a personal property of the Thai spouse. As such, the responsibility of managing personal property only lies with the Thai spouse, who can, moreover, sell or do anything else with the property without the consent of their partner. Additionally, such asset will not be divided as a common property between husband and wife at the event of death or divorce.
One way of protecting assets for foreigners can be obtaining joint or sole ownership over the buildings separate from the land. It is only the land that cannot be owned by a foreigner, not the buildings. If such protective measure is in place, the Thai spouse cannot sell the land without the consent of the foreign spouse anymore. Another way of overcoming these shortcomings are by utilising usufruct (the right to use the land) over the property registered in the foreign spouse’s name.