Marital home and division of the house in a divorce

by Brat Smith
(england)

It is illegal for foreigners to own land in Thailand. For this reason it has long been illegal for Thai nationals married to a foreigner to acquire land because the foreign spouse would through the marital property regime acquire (illegal) ownership in land. It is only since a Ministry of Interior regulation dated March 23, 1999 that it is allowed for a Thai national married to a foreigner to purchase land & the regulation requires a strict procedure to prevent the land from becoming a joint or marital property between a foreign husband and Thai wife. In the procedure must be confirmed that all money paid for the property is personal property and not a common property between the foreigner and the Thai spouse. Only in this case the land office is allowed to register ownership of land on the name of a Thai national married to a foreigner. The land must become a personal property of the Thai spouse and not a Marital and personal property in a Thai marriage common property

What does this mean in a divorce?
Under Marriage laws Thailand Thai marriage and divorce laws only common property must be divided in equal shares. If the above procedure has been followed the foreigner cannot ask for division of the house as part of the common property based on marital property laws, as the property is registered as a personal property of the Thai spouse. Only if the land acquisition procedure not has been followed, and if the land (property) has been bought with money part of the marital property or personal property of the foreign spouse, the home has become a common property under marital property laws. This can only be achieve if the Thai spouse gives false information to the land office officials when registering ownership (not declaring the marriage), and if found guilty, she is liable for fines and imprisonment. In such cases the land departments enforcement and punishment measures in land holding as an agent for a foreigner could be applied and used against the foreigner and his Thai spouse.

If the correct and recommended procedure has been followed the marital home in Thailand will not as a standard procedure is divided equally based on the fact that it is jointly owned property between husband and wife.

Personal property of the foreign spouse
Often the home has been purchased with money belonging to the personal assets of the foreign spouse and is given to the Thai spouse to purchase the real estate property. Buying a house Thailand If the marital home could be part of the division of assets depends on the individual circumstances. Depending on the circumstances the foreigner could revoke his gift, or if this subject is governed and anticipated in a prenuptial agreement made before the marriage he could use this as a claim for compensation. For example the money expended on the property must be made up to him by a share from the other common assets.

Even if the correct procedure has been followed and the property has been registered as a personal property of the Thai spouse, it does not in all cases mean that there are no legal grounds in contested divorce for the foreigner to claim revocation of the gift or compensation for the money expended on the property.

Even though Thai property law seems very much on the Thai national's side, foreigners who invested in real estate in Thailand through a Thai spouse should not per definition write of their investment in a divorce. In a divorce on mutual consent or contested divorce they should not settle for less than entitle to. The best advice is to make a solid prenuptial agreement before the marriage, keep evidence of your finances and payments during the marriage, and if you’re Thai spouse behaves improperly and gives reason for divorce keep evidence of this.