Farangs Have More Property Rights Now?

[Pepe']

Today's Bangkok Post

Corporate Counsellor

Family laws for foreigners

Some key issues couples should know

TILLEKE & GIBBINS

Foreigners and Thais with foreign spouses can encounter certain family laws in Thailand that are unique to the country. Here's a quick checklist about some parts of Thai laws that you should be aware of:

MARRIAGE

Marriage is legal at age 17 with parental consent and at age 20 without parental consent. A marriage is registrable at any of the nation's district offices or at any Thai embassy abroad. Marriage registrations under a foreign law, marriage between Thais or between a Thai and a foreigner is considered legal in Thailand under Section 1459 of the Civil and Commercial Code.

However, a marriage is not eligible for registration if it is:

- with a brother or sister;

- with any blood relation;

- by an adopter with any person he or she has adopted;

- with the spouse of another living person;

- with or between widowed or divorced persons within 310 days after the termination of the previous marriage, except when a baby is born within the 310-day period, remarrying a former spouse, or a court order is granted that permits the marriage.

PROPERTY

Property ownership by a couple falls into two categories, separate property and communal property.

Separate property is owned by either the husband or the wife and includes property acquired and gifts received before marriage, items for personal use and tools, property acquired by inheritance or as gifts after marriage or items received as a dowry such as an engagement ring or gold.

Communal property is owned jointly by husband and wife and includes property acquired during marriage, other than that received by inheritance or as gifts. Communal property also includes property acquired through a will or as gifts and specified in writing as communal property, as well as interest, profits and benefits earned or accumulated from separate property. Where there is any doubt over the category of property ownership, it is presumed to be communal property.

In the case of land ownership, a Thai national married to a foreigner can purchase land, which will be categorised as separate property of the Thai spouse. When the Thai spouse is purchasing land, the foreign spouse must furnish written confirmation that the land is being purchased with the Thai spouse's own financial resources.

Land ownership by a foreigner is more restrictive. A foreigner may own a maximum of one rai [one-fifth of an acre] of land if the following conditions are met:

- Investment of at least 40 million baht in Thailand for a minimum of five years;

- The investment must be in a business beneficial to Thailand as listed by Ministry of Interior;

- The land is in Bangkok, Pattaya or a municipal residential area in any province in accordance with city planning laws;

- The land is used only for residential purposes;

- The Land Department is notified within 60 days from starting use of the land.

DIVORCE

Thai law permits two divorce categories, by mutual consent or by court judgment.

Divorce by mutual consent, must be agreed to in writing, witnessed by two persons and registered at a district office or a Thai embassy.

A judgment for divorce is granted only if the application is based on one of the 12 legal grounds for divorce. The divorce is effective on the date of the court's final judgment and must be registered at a district office or an embassy.

INHERITANCE AND WILLS

When a person dies, his/her estate is bequeathed to the heirs. Two types of heirs are recognised, statutory heirs, or those defined by the law, and legatees, or heirs stipulated by a will.

If there is no will, statutory heirs will inherit in the following order:

- children, parents and spouse of the deceased _ equal shares.

- parents and spouse of the deceased _ spouse receives half.

- full brothers, full sisters _ spouse of the deceased receives half.

- half-brothers, half-sisters _ spouse of the deceased receives two-thirds.

- grandfathers, grandmothers _ spouse of the deceased receives two-thirds.

- uncles, aunts _ spouse of the deceased receives two-thirds.

- none of the above _ spouse of the deceased receives all.

If an heir in a higher order exists, heirs in the lower orders have no rights at all.

Probate is not required under Thai law and trusts are not allowed under Thai law. Current law has no levy of taxes on inheritances.

- Written by Anongporn Thanachaiary of Tilleke & Gibbins International Ltd. www.tillekeandgibbins.com. Please send comments, feedback and suggestions to Satnam S. Sachavirawongse, e-mail

[email protected].

[Up2U]

So I get to keep my Black & Decker, but the house is communal property? I'd better build a very large brick case for the B&D.

[Dutchy2]

In the case of land ownership, a Thai national married to a foreigner can purchase land, which will be categorised as separate property of the Thai spouse. When the Thai spouse is purchasing land, the foreign spouse must furnish written confirmation that the land is being purchased with the Thai spouse's own financial resources.

And then you can get a joint mortgage where the mortgage alone is higher then the Thai partner's monthly salary, they don't even look at that.

This is only possible in Thailand. Money can break any rule and logical thinking skills were somehow not invented in Thailand....

[KevinN]

quote;;;;This is only possible in Thailand. Money can break any rule and logical thinking skills were somehow not invented in Thailand""

Not only Not invented in Thailand,,But not practiced in Thailand ,under any circumstances.

[eyespan]

Nothing new.

[dr_Pat_Pong]

Did you all think that a change was imminent ? Have a read of the Thai Constitution.

[Sumitr Man]

^Dr. Pat - talking of which, do you (or anyone else) have an update on the Supreme Court hearing re foreign married mens' rights? Case came about following the equal rights changes last year. Aparently foreign men are soon to have the same rights after marriage as foreign women. However, I have not seen an update on this case for some time. Any info would be greatly appreciated

SM

[Rinrada]

World Trade Membership forbids any type of discrimanation...he he but TIT

[Dutchy2]

^Dr. Pat - talking of which, do you (or anyone else) have an update on the Supreme Court hearing re foreign married mens' rights?  Case came about following the equal rights changes last year.  Aparently foreign men are soon to have the same rights after marriage as foreign women.  However, I have not seen an update on this case for some time.  Any info would be greatly appreciated

SM

The judge stated that male farang have sufficient normal legal ways to obtain citizeship and the difference with female applicants should be considered irrelevant.

One first would need to explain to the Thais what 'equal rights' means before they can decide about this kind of cases in court. They can not grasp it... It surely hasn't got anything to do with English as the court proceeding were in Thai, I

also assume that the judge possesses a higher IQ than the average Thai..

What it is then I leave up to your imagination... I seriously think that people will change the 'buffalo' to a nationality one day to express their opinion about the intelligence of a counterpart.

[Sumitr Man]

^ thanks. It's bad news but thanks all the same.

Guess it more of the same then...

[Pepe']

Guess I'm reading it wrong.

"If there is no will, statutory heirs will inherit in the following order:

- children, parents and spouse of the deceased _ equal shares."

What confuses me is it sounds like property can be willed or left to the farang husband?

[edd]

The land is used only for residential purposes;

Does this mean you have to invest 40,000,000 B AND then you can buy 1 rai to use to live on or

as a falang spous you can now buy 1 rai of land if it is only to live on.

This would be a step forward

Edd

[Pepe']

Sorry if I'm a little slow today edd

So reality is we still can't own anything unless there is a 40,000,000 bhat investment for 5 years

[edd]

Sorry if I'm a little slow today edd

So reality is we still can't own anything unless there is a 40,000,000 bhat investment for 5 years

OH BUGGER!

I will just have to pay the 40,000,000 B out of my dinner money

so no lunches for me for the next 223.6 years (70b per day- 7 days per week 50 weeks per year)

No i didnt think that the Thai government would do something that would help the falang,the Thai wife and in turn the Thai nation.

edd

[Sumitr Man]

Pepe:

Section 93 of the Land Code:

"The Minister shall permit the inheritance of land by an ALIEN who is

the LAWFUL heir, but such acquisition, when added to that which is

already held, may not exceed the amount which may be held under S. 87"

For the purposes of this provision of the Land Code, the limit under S. 87 is 1 Rai for residential purposes.

There is nothing new about this provision of the Land Code and farangs buying land with their wife/gf should ALWAYS endure the wife/gf makes out a will leaving them the land in the case of their death. The only inherint problem with this provision is that one still requires the Minister's permission to register the land. Exactly what that constitutes, I'm not sure.

Regards

SM

[Richard W]

However, a marriage is not eligible for registration if it is:

- with a brother or sister;

- with any blood relation;

- by an adopter with any person he or she has adopted;

- with the spouse of another living person;

- with or between widowed or divorced persons within 310 days after the termination of the previous marriage, except when a baby is born within the 310-day period, remarrying a former spouse, or a court order is granted that permits the marriage.

Garbled, I think. I think the second rule means one cannot marry an ancestor.

- by an adopter with any person he or she has adopted;

- with the spouse of another living person;

- with or between widowed or divorced persons within 310 days after the termination of the previous marriage, except when a baby is born within the 310-day period, remarrying a former spouse, or a court order is granted that permits the marriage.

I believe they mean 'woman', not 'persons' of either sex, in the 310 day rule. And I suspect it should say 'remarrying the former spouse', not 'remarrying a former spouse'. I received a translation of these marriage laws about six years ago.

[Davidcharles]

If your property automatically goes to your Thai wife then is there any need to make a will?.

[Sumitr Man]

^DC: the situation you are trying to cover is where your wife dies before you, and the land is in her name. In such a case, without a lawful will, it is likely that the land will pass to her nearest living [blood] relative. However, were she to make a lawful will, and name you, as her farang husband, as the beneficiary of the land, then you would inherit - subject to permission to register. That said, even where you are refused permission to register by the Minister, you still have 180 days in which to sell the land (which is yours regardless), thereby giving you enough time to find another "favourable" person.

Of course, this situation may be avoided if you get a lease of the land from the wife. In such a case, the lease would survive your wife's death - against her estate - and there is nothing the beneficiary could do until such time as the lease terminates.

Regards

SM

[Pepe']

Sumitr Man,

Thanks for adding some clarity. Finally some valuable info.

[Davidcharles]

I understand, but why should I make a will leaving the house, which is owned by my company, and the rest of my possessions, to my wife, if she is legally entitled them it anyway....?

[Sumitr Man]

DC:

Beause the house is owned by the company - not you. Therefore, you would need to ask yourself:

(1) would your wife be entitled to inherit the shares of such company on your death?

(2) would the other shareholders of the company propose that the company be dissolved upon your death?

In the case of (2), it is likely that the house would need to be liquidqated (sold) with the proceeds going to any creditors of the company and the existing shareholders of the company.

In any event, you cannot give away (via will) what is not yours. Thus, you cannot mke your wife the beneficiary of the house, but only the shares in your company that owns the house. Thereafter, whether or not the situation in (2) arises is outside of your control - and it's likely that you would not care anyhow!

EDIT:

DC - also, as a shareholder, but not a director, of the company that owns the house, your wife may not be able to continue living in the house after your demise as the [other] directors would be duty bound to get the best return on their asset as possible - which could mean either selling the house or renting it to someone else for a higher rent.

Consequently, there are a number of factors you need to consider with an arrangement of this nature.

[dr_Pat_Pong]

^Dr. Pat - talking of which, do you (or anyone else) have an update on the Supreme Court hearing re foreign married mens' rights? Case came about following the equal rights changes last year. Aparently foreign men are soon to have the same rights after marriage as foreign women. However, I have not seen an update on this case for some time. Any info would be greatly appreciated

SM

The Court did not find for foreign men. It may be reconsidered in the next 6 to 9 months.

[dr_Pat_Pong]

^DC: the situation you are trying to cover is where your wife dies before you, and the land is in her name. In such a case, without a lawful will, it is likely that the land will pass to her nearest living [blood] relative. However, were she to make a lawful will, and name you, as her farang husband, as the beneficiary of the land, then you would inherit - subject to permission to register. That said, even where you are refused permission to register by the Minister, you still have 180 days in which to sell the land (which is yours regardless), thereby giving you enough time to find another "favourable" person.

Of course, this situation may be avoided if you get a lease of the land from the wife. In such a case, the lease would survive your wife's death - against her estate - and there is nothing the beneficiary could do until such time as the lease terminates.

Regards

SM

I'd be inclined to check this assertion somewhat more before relying on it.

[Sumitr Man]

EDIT

Actually, thinking about this a little more, you should heed Dr. P's advice and check this out. All information regarding inheritance and land rights can be located in the Civil and Commercial Code of Thailand and the Land Code. Anyone contemplating entering into a transaction involving a land purchase in Thailand would be well advised to read these, as well as to seek the advice of a reputable Thai lawyer - which I'm not. Therefore, please do not rely on anything I have posted. My posts are merely to lead you in the right direction, they are not to be relied upon.

[Up2U]

Which surely applies to all 'advice' on this or any other forum.

We try to give the best advice, based upon the given facts, but professional advice, with the adviser asking many more questions to elicit the full background (and being covered by a Professional Indemnity) and having better training in the subject area (sometimes), should always be sought in serious matters.

We mostly speak from experience, having learnt many of the pitfalls by having fallen into them, but do not necessarily know everything.