Personal and marital property in Thailand
MARRIAGE laws in Thailand specify that property belonging to either spouse before the marriage and khongman remains personal property during the marriage, and each spouse shall remain the sole manager of his or her personal property. Section 1472: 'if personal property during the marriage has been exchanged for other property, other property has been bought or money has been acquired from selling it, such other property or money acquired shall remain personal property (Sin Suan Tua)'.
Personal property (Sin Suan Tua) under Thai marriage laws (section 1471) consists of:
1. property belonging to either spouse before marriage
2. property for personal use, dress or ornament suitable for station in life, or tools necessary for carrying on the profession of either spouse
3. property acquired by either spouse during marriage through a will or gift
4. Khongman.
Jointly owned property
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 in a prenuptial agreement.
Jointly owned property (section 1474) between husband and wife (Sin Somros) consists of:
1. property acquired during marriage;
2. 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;
3. fruits of Sin Suan Tua.
In case of doubt as to whether a property in Sin Somros or not shall be presumed to be Sin Somros.
Management over 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.
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:
1. 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.
2. Creating or distinguishing the whole or a part of the servitude, right of habitation, right of superficies, usufruct or charge on immovable property.
3. Letting immovable property for more than three years.
4. Lending money
5. Making a gift unless it is a gift for charitable, social or moral purposes and is suitable to the family condition.
6. Making a compromise.
7. Submitting a dispute to arbitration.
8. 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 above can be made only by one spouse without having to obtain consent from the other'. -------
Management over real estate during marriage
The most important jointly managed asset between husband and wife in section 1476 is immovable property. However, in case of a foreigner married to a Thai national land in Thailand (often land and house) will because of foreign ownership restrictions be owned by the Thai spouse as a personal property. It will not be a common property governed by section 1476 and the Thai spouse will be the sole manager of the property and is able sell, mortgage or encumber the property without the consent of the foreign spouse.
Note that 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 or even personal of the foreign spouse. Co-ownership or ownership by the foreign spouse over the building separate from the land restricts sole management by the Thai spouse. The Thai spouse would not be able to manage or sell the whole property without the consent of the foreign spouse (pursuant section 1476 'management of Sin Somros' above).
Section 1475: 'Where any Sin Somros is property of the kind mentioned in Section 456 (meaning immovable property) 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'.
The most common method for the foreign spouse to protect his interest lies not in registration of ownership over the building but in registering a right of usufruct, or in case of undeveloped land a right of superficies over the land in favor of the foreign spouse.