Sueing My Wife Acting As My Nominee. Could It Be Done?

[hanuman2543]

Hy,

I put this question on the forum to evaluate the risks included if I choose this way to sue my wife for being my nominee or if it is better to file for a normal divorce and split the” sin somros” 50/50.

Here is a description of the situation.

My wife and I we married in Denmark in 2001. I am a German citizen and the marriage was registered in Germany in 2001. In 2002 we moved to Thailand. We split up last year and it looks like my wife wants to fight it out in court.

In the year 2002 I transferred about 3 millon Baht from my bank account in Germany to the Thai bank account of my wife. The money was my sin suan tua. This time our marriage was not registered in Thailand, but my wife stated in the marriage papers that she wants to bear my family name. With this money we bought 2 houses. In the land papers there is no lease or usufruct for my benefit. The first house we bought was the house of her parents. The family had sold that house some years before to a colleague of her first husband (he is a soldier and can have a mortgage from the government). The sale was a “fake” because they continued living there and paying only the rates of the mortgage for him and the money they got for it they spent.

The second house we bought for us to live in, some months later. The 2 times she went to the land office she put the houses in her maiden name, she did not say that she has a foreign husband( I am not sure if she stated she is single), not mentioned that the funds came from me and I did not sign the papers the law asks for. All this I can prove and maybe the seller can provide more info what happened at the Land Office.

According to Section 96 of the Land Act the Land Department has to revoke the title deeds and transfer them to me because she acted as a nominee for me. I have to sell it then in a year. On top she committed several criminal offences, as I did myself, punishable by fines and/or jail sentence. The Land Department in BKK told me the same on the phone. Last week I consulted a Thai lawyer. He told me that the case is not so easy and that she will deny certainly that she acted as my nominee (she has a lawyer). For example she could say that the money was a present from me (nothing written about that and I never said that) and that members of her family or people from her village could testify this in court. Because nobody of her family or from her village understands enough English they would only be able to “testify” what my wife told or translated for them (how credible is a witness in a Thai court, who can only testify , what he/she heard from one of the parties involved about what the other party said or promised after 9 years?). Another example was faked credit documents from moneylenders to show the court that she had the complete control over the property. Fact is that we kept both title deeds in our house and that they were never used as a collateral for any loan. We never had any marriage party in Thailand and because my wife was married before and having a child from this marriage I never promised or paid any sin sod.

The section 96 of the Land Act is quite clear, but who can give advice on the following questions?

Do I have to sue my wife in court, or will the Land Department sue her after I inform them and they investigate the case?

Is it better to inform the Land Department in BKK or the Interior Ministry instead of the Land Office where this happened (middle seized town in the Isaan)?

What does really count as evidence in the court and who has the burden of proof for what?

Is a Thai spouse automatically a nominee when one or more of the requirements of Section 96 is not fulfilled or does the court requires more as proof?

Does anybody have information about a similar case where the foreigner had won the case (I read that the Pattaya Expat Club has information about such a case, who knows more?)?

I hope that there will be a lot of competent advice on this matter because, after reading a lot about it, my impression is that most foreigners fear that the Land Department will take away land and house from them and their wives when it is obtained in a similar way and not see that this could be the chance to get a better bargaining chip in the case of a divorce.

Hanuman2543

[InterestedObserver]

What date did you register your marriage at the local Amphur in Thailand, if in fact it is registered. Did you purchase both houses before or after you registered your marriage in Thailand. You should consider that there could be jail time associated with the nominee issue.

[Boater]

you gave her 3 million THB Sin Sod

i think , as from your OP, she has well and truley had you, and i dont think there is much you can do ! , a court case will cost to much , and you will probably lose....

take it as a lesson and move on with your life, plenty more buffelo in the fields

[hanuman2543]

We purchased both houses before registering our marriage at the local Amphur. I know that I could be punushed, but the risk for her is much bigger.

[RAZZELL]

We purchased both houses before registering our marriage at the local Amphur. I know that I could be punushed, but the risk for her is much bigger.

Might be a stupid question, by why do you have to register your marriage at an Amphur if you were already married in Denmark?

Is it to do with assets held before and after marriage?

RAZZ

[InterestedObserver]

We purchased both houses before registering our marriage at the local Amphur. I know that I could be punushed, but the risk for her is much bigger.

Then the houses and land are not Sin Somros marital property under Thai law; therefore not subject to 50/50 split upon divorce. If you could convince the Divorce Court that you paid 100% for the property, then you could conceivably prevail. It has happened, as reported on ThaiVisa. However, all the Title Deeds are in your wife's name so it won't be easy.

[InterestedObserver]

We purchased both houses before registering our marriage at the local Amphur. I know that I could be punushed, but the risk for her is much bigger.

Might be a stupid question, by why do you have to register your marriage at an Amphur if you were already married in Denmark?

Is it to do with assets held before and after marriage?

RAZZ

You are not legally married under Thai law until you register the marriage at the local Amphur. Makes children born in Thailand the legal offspring of both parents under Thai law.

Edited June 9, 2011 by InterestedObserver

[hansnl]

We purchased both houses before registering our marriage at the local Amphur. I know that I could be punushed, but the risk for her is much bigger.

Then the houses and land are not Sin Somros marital property under Thai law; therefore not subject to 50/50 split upon divorce. If you could convince the Divorce Court that you paid 100% for the property, then you could conceivably prevail. It has happened, as reported on ThaiVisa. However, all the Title Deeds are in your wife's name so it won't be easy.

If she would have registered the property in her married name, she would have to declare that the money was her money and not from a foreigner.

But.......

[thaicbr]

Well you have buggered up any case. because you have admitted here that the money spent was from the Sinsod (because that's what she thought it was) that was transfered to her account therefor her money... Walk away lick the wounds and learn from it.

Sorry mate but you had 9 years of fun. i WISH YOU THE BEST THOUGH.

[sunnyhor]

That depends on what country you register for the marriage. I somehow disagree that one have to " re-register" for a marriage in Amphur. For my case , I get a lawyer stamp, notary public or something like that, then translate the ROM cert into Thai language, this is as good as marrying in Thailand.

No one except the lawyers can answer your queries accordingly. I feel sorry for you, but alternatively like some bros said, take it as a lesson! Thai laws always change, we wouldn't know what is this law today and that might change next week. To be frank, if you were to pursuit this matter, unless you have many millions to burn, you can try it BUT if not, let it go!!! The court is very expensive for this kind of Thai - Farang matters! My 2 cents worth!

We purchased both houses before registering our marriage at the local Amphur. I know that I could be punushed, but the risk for her is much bigger.

Might be a stupid question, by why do you have to register your marriage at an Amphur if you were already married in Denmark?

Is it to do with assets held before and after marriage?

RAZZ

You are not legally married under Thai law until you register the marriage at the local Amphur. Makes children born in Thailand the legal offspring of both parents under Thai law.

[antony77]

We purchased both houses before registering our marriage at the local Amphur. I know that I could be punushed, but the risk for her is much bigger.

Then the houses and land are not Sin Somros marital property under Thai law; therefore not subject to 50/50 split upon divorce. If you could convince the Divorce Court that you paid 100% for the property, then you could conceivably prevail. It has happened, as reported on ThaiVisa. However, all the Title Deeds are in your wife's name so it won't be easy.

If she would have registered the property in her married name, she would have to declare that the money was her money and not from a foreigner.

But.......

not correct! she can claim it was a present from him. I give my wife 10million as a present. So it becomes her money. If she wants to buy property with it is OK.

[Tywais]

Well you have buggered up any case. because you have admitted here that the money spent was from the Sinsod

The OP didn't say anything about sin sod that I can see but sin suan tua. Just to clarify the definition.

When a couple divorces in Thailand all marital property (sin somros) is divided equally. personal property (sin suan tua) remains owned by the individual. Thus marital property is anything acquired during marriage by way of gift, purchase, or inheritance. Personal property is anything acquired before the marriage like a house, tools, equipment and any possessions. If both parties agree then the proceedings are straight forward.

Sunbelt

More legal details here .pdf

[jackdawson]

..and in today's other matches ,we have a final from dusseldorf/nakhon sawan...

thailand 1 germany 0

[InterestedObserver]

That depends on what country you register for the marriage. I somehow disagree that one have to " re-register" for a marriage in Amphur. For my case , I get a lawyer stamp, notary public or something like that, then translate the ROM cert into Thai language, this is as good as marrying in Thailand.

From the Thai Civil and Commercial Code:

Section 1457. Marriage under this Code shall be effected only on registration being made.

[Mario2008]

You are not legally married under Thai law until you register the marriage at the local Amphur. Makes children born in Thailand the legal offspring of both parents under Thai law.

They were legally married in Denmark, which is also recognized by Thailand.

All the registration at the amphur does in this case is to notify the Thai government of the existing marriage. A requirement if you want to stay in Thailand on an extension of stay based on marriage, but that is all. The Thai government considers them married from the date they got legally married in Denmark.

As to the houses/land in the wife name, if is acquired during marriage and Thai judges normally will split the value 50/50.

[InterestedObserver]

You are not legally married under Thai law until you register the marriage at the local Amphur. Makes children born in Thailand the legal offspring of both parents under Thai law.

They were legally married in Denmark, which is also recognized by Thailand.

All the registration at the amphur does in this case is to notify the Thai government of the existing marriage. A requirement if you want to stay in Thailand on an extension of stay based on marriage, but that is all. The Thai government considers them married from the date they got legally married in Denmark.

As to the houses/land in the wife name, if is acquired during marriage and Thai judges normally will split the value 50/50.

Then to follow your logic they can only get divorced in Denmark since a Thai divorce court has no jurisdiction over a Danish marriage.

[RAZZELL]

You are not legally married under Thai law until you register the marriage at the local Amphur. Makes children born in Thailand the legal offspring of both parents under Thai law.

They were legally married in Denmark, which is also recognized by Thailand.

All the registration at the amphur does in this case is to notify the Thai government of the existing marriage. A requirement if you want to stay in Thailand on an extension of stay based on marriage, but that is all. The Thai government considers them married from the date they got legally married in Denmark.

As to the houses/land in the wife name, if is acquired during marriage and Thai judges normally will split the value 50/50.

Then to follow your logic they can only get divorced in Denmark since a Thai divorce court has no jurisdiction over a Danish marriage.

I don't see that argument put forward at all. I see that a Thai divorce would be recognised in Denmark (like most other countries)

So, do you have a to register a "foreign marriage" at an amphur or not?

RAZZ

[InterestedObserver]

I don't see that argument put forward at all. I see that a Thai divorce would be recognised in Denmark (like most other countries)

So, do you have a to register a "foreign marriage" at an amphur or not?

RAZZ

From the Thai Civil and Commercial Code:

Section 1457. Marriage under this Code shall be effected only on registration being made.

Section 1458. A marriage can take place only if the man and woman agree to take each other as husband and wife, and such agreement must be declared publicly before the Registrar in order to have it recorded by the Registrar.

Section 1459. A marriage in foreign country between Thai people or between a Thai people and a foreigner may be effected according to the form prescribed by Thai law or by the law of the country where it takes place. If the spouses desire to have the marriage registered according to Thai law, the registration shall be effected by a Thai Diplomatic or Consular Officer.

[hanuman2543]

I have the impression that some of the posters here are not really aware of what the Land-Code-Amendment Act (No.8) B.E. 2542(1999) really says. Here is a quote of the paragraph I mean:

An alien whose spouse is a Thai national either legitimate or illegitimate, that Thai national can purchase land but the alien spouse of that Thai national must give a joint written confirmation that the money which that Thai national will expend on purchasing the land is wholly the separate property or personal effects of that Thai national and not the Sin Somros or jointly acquired property.

Maybe now it becomes a little bit clearer what I mean. The text is very specific about the requirements the Thai spouse has to fulfil. What I miss is that the law says nothing about the consequences, when somebody on purpose or accidently not do, what the law requires.

To clarify the story about the money transfer a little bit more: I sent the 3 million Baht in several tranches to Thailand. Therefore I think that the “argument” that all the money was a gift or sin sod becomes very lame (when is an amount of money transferred by a foreigner to a Thai bank account a gift?). And when the Thai claims it was a gift, what kind of proof is required, because without proof everybody can say that.

Where on TV I can find the information about the foreigner who won his case?

[Mario2008]

Then to follow your logic they can only get divorced in Denmark since a Thai divorce court has no jurisdiction over a Danish marriage.

section 1459 gives the possibility that a Thai abroad marries at a Thai diplomatic post, for those who like that. But as the same article states, they can marry according to the local laws of that country and the marriage is recognized as well.

A Danish marriage is recognized in Thailand, and because of that can also be disolved in Thailand. But normally countries require that there is a link to the country you divorce in. In essence that at least one of the spouses lives in that country for a minimum period. What is often not recognized is going to another country on a holiday to get a divorce their on the to them most favourable terms. Better said, in that case the divorce might be recognized but not the financial settlement.

[Mario2008]

I have the impression that some of the posters here are not really aware of what the Land-Code-Amendment Act (No.8) B.E. 2542(1999) really says. Here is a quote of the paragraph I mean:

An alien whose spouse is a Thai national either legitimate or illegitimate, that Thai national can purchase land but the alien spouse of that Thai national must give a joint written confirmation that the money which that Thai national will expend on purchasing the land is wholly the separate property or personal effects of that Thai national and not the Sin Somros or jointly acquired property.

Maybe now it becomes a little bit clearer what I mean. The text is very specific about the requirements the Thai spouse has to fulfil. What I miss is that the law says nothing about the consequences, when somebody on purpose or accidently not do, what the law requires.

To clarify the story about the money transfer a little bit more: I sent the 3 million Baht in several tranches to Thailand. Therefore I think that the "argument" that all the money was a gift or sin sod becomes very lame (when is an amount of money transferred by a foreigner to a Thai bank account a gift?). And when the Thai claims it was a gift, what kind of proof is required, because without proof everybody can say that.

Where on TV I can find the information about the foreigner who won his case?

You are asking about court rulings. In your case, whith all the money involved I would suggest contacting a competent lawyer. You going to need one for the divorce settlement anyway.

You will also have to take into consideration what Danish law has to say, especially if you have any assets there.

Do note that splitting what is acquired during the marriage also includes any debts.

[hanuman2543]

Competent lawyer-any suggestions?

[Mario2008]

The recommendations will depend on the area you are looking, Chang Mai, Isaan, Bangkok, Phuket... and the price of course.

[hanuman2543]

Here is an evaluiation from Robert Spelde, a foreign lawyer here in Thailand and I think it makes a lot of sense:

Dear Ingo

I can only give general answer as I do not know all the details or your

financial situation. This is not legal advice.

In general it is better to leave the land department out and forget about

suing your wife for being your nominee.

It is clear you are both living in Thailand and planning to divorce?

In this case, if you cannot agree with your wife on the separation, try to

get what your are entitled to in a divorce procedure in court.

1- because the land is registered is in your wife's name does not

automatically mean the land will be given to her in a divorce, not even

50/50. The division of the properties is based on the system of property

in the Civil and Commercial Code.

This is simply a matter of calculations, what is personal assets, what is

marital assets and how is marital assets best divided between the couple

based on individual circumstances.

We recently had a similar case, a divorce with land registered in the

wife's name without the letter of confirmation signed. In the divorce

procedure in court the land was given to the foreign husband with the

obligation to sell within 1 year.

Most relevant law:

Section 1471. personal property consists of:.... property belonging to

either spouse before marriage...

Section 1472. As regards to personal property, if it has been exchanged to

other property, other property has been bought or money has been acquired

from selling it, such other property or money acquired shall be personal

property (Sin Suan Tua).

In my opinion, based on section 1472, the land is your personal property,

irrespective registration in your wife's name.

2- The argument of your wife that is was a gift made during the marriage

does not work in court because, again, the division of assets in a divorce

will be based on the system of the law and any private agreements (her

possible argument that it was a gift) made during the marriage are

voidable.

Relevant law: Section 1469. Any agreement concluded between husband and

wife during marriage may be avoided by either of them at any time during

marriage or within one year from the day of dissolution of marriage;

provided that the right of third persons acting in good faith are not

affected thereby. (this includes gifts)

3- Maybe you have to write off the assets given to the parents of your wife.

4- In a divorce the division for a large part depends on what you can

proof, as in case of doubt as to whether a property in marital property or

not it shall be presumed to be marital property between husband and wife.

Marital property = property acquired during marriage (subject to the above

sections 1471 and 1472), 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 joint property between husband and wife,

fruits (income) from personal property.

Only marital assets are divided equally. I would argue that the land and

house is your personal property. If not, in any case, it has to made up to

you by allocation of a share of marital assets to you, equal to the money

you spend.

Your legal situation under Thai law may not be as bad as you may think.

Good luck and feel free to ask a question should my answer not be clear.

Regards

Robert

[thaiwanderer]

A gift is not an agreement.

Claiming (in the above post) it is and is therefore voidable and then imposing non-gift conditions (agreement terms) on it that were never there initially is quite some convoluted reasoning.

A gift between husband and wife during marriage is or rather can be different not because of the voidability of agreements between husband and wife but because of the marital arena within which it occured.

The OP himself even seems unsure what it was (or rather what to call it now things have gone sour). The matter speaks for itself here - it plainly was a gift with no conditions (expectations perhaps but not conditions). The lack of the land office form waiving rights doesn't mean its a non-gift ('proving' a gift is like trying to prove a negative).

The OP needs to persuade a sympathetic Judge to sympatise with and inflate those expectations to a criminal conspiracy to cirumvent the general prohibition on him owing land which it was always intended would be 'his'. That's happened before and will again but depends on many factors that can't be openly discussed here.

The complicating factor for how best to proceed is whether his chances are better with this as a marital issue or not.

He possibly made the gift outside of Thai marriage. There may be benefits either way for him to try and make the land a divorce matter or just a straight up Thai lady nominee case.

Good legal advice onn both the Thai and Danish elements and overlaps should be obtained as there are so many variables here as to the best way to proceed.

[techno]

Here is an evaluiation from Robert Spelde, a foreign lawyer here in Thailand and I think it makes a lot of sense:

Dear Ingo

I can only give general answer as I do not know all the details or your

financial situation. This is not legal advice.

In general it is better to leave the land department out and forget about

suing your wife for being your nominee.

It is clear you are both living in Thailand and planning to divorce?

In this case, if you cannot agree with your wife on the separation, try to

get what your are entitled to in a divorce procedure in court.

1- because the land is registered is in your wife's name does not

automatically mean the land will be given to her in a divorce, not even

50/50. The division of the properties is based on the system of property

in the Civil and Commercial Code.

This is simply a matter of calculations, what is personal assets, what is

marital assets and how is marital assets best divided between the couple

based on individual circumstances.

We recently had a similar case, a divorce with land registered in the

wife's name without the letter of confirmation signed. In the divorce

procedure in court the land was given to the foreign husband with the

obligation to sell within 1 year.

Most relevant law:

Section 1471. personal property consists of:.... property belonging to

either spouse before marriage...

Section 1472. As regards to personal property, if it has been exchanged to

other property, other property has been bought or money has been acquired

from selling it, such other property or money acquired shall be personal

property (Sin Suan Tua).

In my opinion, based on section 1472, the land is your personal property,

irrespective registration in your wife's name.

2- The argument of your wife that is was a gift made during the marriage

does not work in court because, again, the division of assets in a divorce

will be based on the system of the law and any private agreements (her

possible argument that it was a gift) made during the marriage are

voidable.

Relevant law: Section 1469. Any agreement concluded between husband and

wife during marriage may be avoided by either of them at any time during

marriage or within one year from the day of dissolution of marriage;

provided that the right of third persons acting in good faith are not

affected thereby. (this includes gifts)

3- Maybe you have to write off the assets given to the parents of your wife.

4- In a divorce the division for a large part depends on what you can

proof, as in case of doubt as to whether a property in marital property or

not it shall be presumed to be marital property between husband and wife.

Marital property = property acquired during marriage (subject to the above

sections 1471 and 1472), 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 joint property between husband and wife,

fruits (income) from personal property.

Only marital assets are divided equally. I would argue that the land and

house is your personal property. If not, in any case, it has to made up to

you by allocation of a share of marital assets to you, equal to the money

you spend.

Your legal situation under Thai law may not be as bad as you may think.

Good luck and feel free to ask a question should my answer not be clear.

Regards

Robert

Great advice Robert and thats exactly what my lawyer said in CNX. At the end its really up to the lawyers and the Courts and may be different from province to province

[hanuman2543]

Here an update on the situation and an answer to the question:

Yes it is possible to sue her acting like my nominee. I have to go to the Land Office and tell there, that she aquired the land and houses using my funds and hand over the evidence. The Land Office will hand over the case to the police to investigate the matter. The police will ask her about the whole case and give her time to defend herself ( she has to proof, that the funds to buy the land and the houses are hers). When they finished their investigation they will hand over the whole case to the courts where a judge will make a decision.

I was told that by the Land Office, the man who gives legal advice at the court in Surin and a BKK lawyer, the only downside is that the people who provide the funds are subject to be punished by law as well( Land Code 111), but when the judge rules in your favour you will get everything back and have to sell it in 1 year.

Edited November 28, 2011 by hanuman2543

[thaiwanderer]

Here an update on the situation and an answer to the question:

Yes it is possible to sue her acting like my nominee. I have to go to the Land Office and tell there, that she aquired the land and houses using my funds and hand over the evidence. The Land Office will hand over the case to the police to investigate the matter. The police will ask her about the whole case and give her time to defend herself ( she has to proof, that the funds to buy the land and the houses are hers). When they finished their investigation they will hand over the whole case to the courts where a judge will make a decision.

I was told that by the Land Office, the man who gives legal advice at the court in Surin and a BKK lawyer, the only downside is that the people who provide the funds are subject to be punished by law as well( Land Code 111), but when the judge rules in your favour you will get everything back and have to sell it in 1 year.

Strangely vague advice. No mention of selling while in prison? No mention of sin somros?

[hanuman2543]

[

Strangely vague advice. No mention of selling while in prison? No mention of sin somros?

Offenses against the Land Code. The alien who commits the offenses under the Land Code Section 111, due to the acquisition of land illegitimately; shall be subject to punishment with a fine of not exceeding 20,000 Baht or an imprisonment of not exceeding two years or both (That is your risk, like I said already. I doubt that you will spend time in jail. Spoke to 2 people sueing Thais for this, no one was punished)

How can it be sin somros when the foreigner provides the funds ?(strange question because it means the foreigner uses his sin suan tua)

Edited November 28, 2011 by hanuman2543

[thaiwanderer]

Offenses against the Land Code. The alien who commits the offenses under the Land Code Section 111, due to the acquisition of land illegitimately; shall be subject to punishment with a fine of not exceeding 20,000 Baht or an imprisonment of not exceeding two years or both (That is your risk, like I said already. I doubt that you will spend time in jail. Spoke to 2 people sueing Thais for this, no one was punished)

How can it be sin somros when the foreigner provides the funds ?(strange question because it means the foreigner uses his sin suan tua)

Prison is always a consideration since your case will rely on persuading the Court that you have committed an imprisonable offence.

Admittedly there is some friction between CCC 1472 and 1474 but you are on the wrong end of the presumption where there is doubt in favour of Sin Somros.

Even before that you have to persuade the Court you didn't gift your Sin Suan Tua funds to your wife.