Marriage and Property Regime under Thai Law

Marital properties under Thai law are governed by the property relations between husband and wife in the Civil and Commercial Code. Generally, properties acquired by each spouse during marriage will become jointly owned properties between the husband and wife.

However, the property regime between spouses may be fixed when there is a prenuptial agreement signed by the husband and wife. The properties between the husband and the wife except those considered as separate property by virtue of a prenuptial agreement, is referred to as the Marriage Portion.

What are considered Separate Properties of the Husband and Wife?

Section 1471 of the Civil and Commercial Code enumerated the following as separate properties, considered as personal property between the husband and the wife:

1. The property belonging to either spouse before the marriage;
2. The property for personal effects or the tools and the instruments necessary to carry out the profession of each spouse;
3. The property being acquired by either spouse during the marriage by will or
donation; and
4. The property being the engagement gift.

In case the separate property has been exchange or sold, the property or money acquired therefrom is still considered to be a separate property. In case said property is partly or totally damaged but subsequently replaced by another property, said replacement is still considered as a separate property. Each spouse is the manager of his or her own separate property.

What properties constitutes the Marriage Portion?

Section 1474 of the Civil and Commercial Code defines properties belonging to the Marriage Portion as the following:

1. The property acquired during the marriage;
2. The property acquired by either spouse during the marriage by will or donation done in writing and has specified the property as part of the marriage portion;
3. Fruits of the separate properties.

In case of doubt as to whether a property is to be considered a Marriage Portion or not, it shall be presumed to be of the Marriage Portion. This means that all properties acquired during the marriage are considered as the Marriage Portion and are jointly-owned by the husband and wife except as those clearly regarded as separate properties between the spouses. Separate properties shall remain as such to each spouse.

How is the Marriage Portion managed during the marriage?

In the management of the marriage portion, Section 1476 provides that the husband and the wife have to manage jointly the marriage portion or one of the spouses provided consent has been given by the other spouse in the following cases:

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 terminating wholly or partly 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; and
8. Putting up the property as guarantee or security with a competent official or the Court.

The management of the Marriage Portion in any case other than those provided in paragraph one can be made by one spouse without having to obtain consent from the other spouse. In addition, the husband and wife can manage the Marriage Portion differently in whole or in part or in compliance with the prenuptial agreement provided that the agreement is valid as provided for under Section 1465 and 1466 of the Civil and Commercial Code.

How are real estate properties managed in case one of the spouses is a foreigner?

A foreigner married to a Thai is not allowed to have any form of joint ownership in land together with his or her Thai spouse. Any land acquired in Thailand during the course of the marriage with a foreigner cannot be part of the Marriage Portion. Such property belongs to the personal property of the Thai spouse.
Considering that the land is a personal property of the Thai spouse, management of the property is solely granted to the Thai spouse. The Thai spouse has full management and control over the property and is able to sell or encumber the property without the consent of the foreign spouse.

However, the foreign spouse may jointly own with the Thai spouse any building on the land. Only the land ownership is restricted for foreign ownership.

Marital Rights and Obligations related to the Marriage Portion

As provided for under Section 1477 of the Civil and Commercial Code, either husband or wife is entitled to sue, defend or proceed with a case in respect of the maintenance of the Marriage Portion or for the benefit of the Marriage Portion. The debts incurred out of the suit, defense
or proceedings shall be considered as the obligation being performed jointly by both spouses.

Remedies in cases of Mismanagement of the Marriage Portion by Either Spouse

In case the husband or the wife who has been entitled to manage the Marriage Portion commits or is committing an act relative to the management of the Marriage Portion which results to undue loss, the other spouse may apply to the Court for an order to prohibit the commission of the said act. Section 1484 likewise provides that if either husband or wife who is
entitled to manage the Marriage Portion has caused the following:

1. Undue loss;
2. Failure to support the other spouse;
3. Has become insolvent or has incurred debts in the amount exceeding half of the Marriage Portion;
4. Has impeded the management of the Marriage Portion by the other spouse without reasonable ground; and
5. Has caused damages to the Marriage Portion, the other spouse may file a petition to the Court to order him or her the sole manager or division of the Marriage Portion.

Classification and management of properties between the husband and wife is a very important consideration during marriage. It is where the importance of having a prenuptial agreement lies. It saves the spouses from lengthy litigation and arguments relating to properties during the marriage in case the marriage between spouses ends up in divorce.