Does Divorce Invalid A Lifetime Usufruct?

[Mobi]

I'm sure this subject has been done to death, but just for the sake of clarity, can anyone tell me if a lifetime usufruct, held by a farang on a property (house and land) owned by his wife is still valid after they divorce?

This is assuming that he doesn't voluntarily agree to its cancellation at the time of the divorce.

Thanks for any information

Mobi

[InterestedObserver]

If the usufruct agreement was made between spouses during marriage it can be voided. From the Civil and Commercial Code:

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.

[surayu]

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.

that's what i know as well, but i am wondering if a third person can be added somehow once the usufruct is already in place and without a further agreement by the land owner?

[Langsuan Man]

but i am wondering if a third person can be added somehow once the usufruct is already in place and without a further agreement by the land owner?

No, that would circumvent the purpose of the usufruct. Any changes would have to be agreed to by both parties and the usufruct would have to be re-written and agreed to by both

[surayu]

No, that would circumvent the purpose of the usufruct. Any changes would have to be agreed to by both parties and the usufruct would have to be re-written and agreed to by both

Thanks. Do you guess holding a piece of paper(attached to the chanote too) in which the land owner agree in advance with any change of circumstances (as for example, the usufructuary wishing to build more houses and rent/lease them out, or even sublease the whole thing) can have any legal "weight" in this?

I think the bigger problem will be registering the changes at the land office, if the land owner for any reason might not be able/willing to be there in person, i have been told by a lawyer that the land office can actually "obstruct" any new changes/addition by pretending all parts to be there in person..

[cardholder]

but i am wondering if a third person can be added somehow once the usufruct is already in place and without a further agreement by the land owner?

No, that would circumvent the purpose of the usufruct. Any changes would have to be agreed to by both parties and the usufruct would have to be re-written and agreed to by both

There is nothing to stop the Usufructee? granting a lease on the land to a third party.

[cardholder]

If the usufruct agreement was made between spouses during marriage it can be voided. From the Civil and Commercial Code:

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.

So my Usufruct taken prior to marriage should be OK ?

[stgrhe]

but i am wondering if a third person can be added somehow once the usufruct is already in place and without a further agreement by the land owner?

No, that would circumvent the purpose of the usufruct. Any changes would have to be agreed to by both parties and the usufruct would have to be re-written and agreed to by both

There is nothing to stop the Usufructee? granting a lease on the land to a third party.

That is correct provided no hinder was made to the usufruct rights at the time when the agreement was made.

"Section 1422 – Unless otherwise provided in the act creating a usufruct, the usufructuary may transfer the exercise of his right to a third person. In such case the owner of the property may sue the transferee direct."

[stgrhe]

If the usufruct agreement was made between spouses during marriage it can be voided. From the Civil and Commercial Code:

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.

So my Usufruct taken prior to marriage should be OK ?

Right, but some land offices will refuse registration of such an agreement despite there is no law giving them the right to do so, but this is Thailand where local Government authorities so often make up their own rules.

[cardholder]

If the usufruct agreement was made between spouses during marriage it can be voided. From the Civil and Commercial Code:

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.

So my Usufruct taken prior to marriage should be OK ?

Right, but some land offices will refuse registration of such an agreement despite there is no law giving them the right to do so, but this is Thailand where local Government authorities so often make up their own rules.

I believe Isaan Lawyers have successfully registered every Usufruct they have created. Mine certainly

[Mobi]

Thank you for all your replies, and I know I am a bit dim, but none of the posts semed to have answered my specific question.

For the sake of clarity I will restate the circumstances

1. Thai Wife hold land title deeds to house and land.

2. Thai wife grants usufruct to farang husband giving him a lifetime right to residence etc and this document is duly registered at the land office and the usufruct is noted on the chanod.(This is already an established fact, so there is no point debating whether or not the land office will agree to this because they already have.)

3. They divorce, with no specific mention of the usufruct in the divorce settlement.

My questions:

1. Does the act of divorce AUTOMATICALLY invalidate the usufruct? (presumably not, but I would like this confirmed)

2. Subsequent to divorce, could the wife unilaterally, (i.e. without the ex husband's agreement), seek to have the usufruct invalidated?

Thanks once again for any informed views on this.

Mobi

[InterestedObserver]

Thank you for all your replies, and I know I am a bit dim, but none of the posts semed to have answered my specific question.

For the sake of clarity I will restate the circumstances

1. Thai Wife hold land title deeds to house and land.

2. Thai wife grants usufruct to farang husband giving him a lifetime right to residence etc and this document is duly registered at the land office and the usufruct is noted on the chanod.(This is already an established fact, so there is no point debating whether or not the land office will agree to this because they already have.)

3. They divorce, with no specific mention of the usufruct in the divorce settlement.

My questions:

1. Does the act of divorce AUTOMATICALLY invalidate the usufruct? (presumably not, but I would like this confirmed)

2. Subsequent to divorce, could the wife unilaterally, (i.e. without the ex husband's agreement), seek to have the usufruct invalidated?

Thanks once again for any informed views on this.

Mobi

1. No, divorce does not automatically invalidate a usufruct.

2. Yes, according to Section 1469 of the Civil and Commercial Code, a usufruct can be unilaterally voided within one-year of the divorce.

3. The divorce court could invalidate the usufruct in order to mandate division of marital property.

If you think you need a lawyer, then you do.

[Mobi]

Thank you for all your replies, and I know I am a bit dim, but none of the posts semed to have answered my specific question.

For the sake of clarity I will restate the circumstances

1. Thai Wife hold land title deeds to house and land.

2. Thai wife grants usufruct to farang husband giving him a lifetime right to residence etc and this document is duly registered at the land office and the usufruct is noted on the chanod.(This is already an established fact, so there is no point debating whether or not the land office will agree to this because they already have.)

3. They divorce, with no specific mention of the usufruct in the divorce settlement.

My questions:

1. Does the act of divorce AUTOMATICALLY invalidate the usufruct? (presumably not, but I would like this confirmed)

2. Subsequent to divorce, could the wife unilaterally, (i.e. without the ex husband's agreement), seek to have the usufruct invalidated?

Thanks once again for any informed views on this.

Mobi

1. No, divorce does not automatically invalidate a usufruct.

2. Yes, according to Section 1469 of the Civil and Commercial Code, a usufruct can be unilaterally voided within one-year of the divorce.

3. The divorce court could invalidate the usufruct in order to mandate division of marital property.

If you think you need a lawyer, then you do.

Thank you for your further advice.

I actually doubt if a lawyer will be necessary - I'm a just trying to understand the legal situation; that doesn't necessarily imply there will be a problem or that anyone will wish to void the usufruct.

There will be no divorce court, as there is every chance that an amicable agreement will be reached on division of marital property.

The issue would not even arise if the house could be sold and the proceeds shared, but there seems little chance of that happening in the foreseeable future.

Just so that I understand everything, can you confirm that if the usufruct is NOT unilaterally voided within one year of the dissolution of the marriage, does that mean that it will remain in force until the 'usufructee' dies or at such time as it is mutually voided or the house sold?

Thanks

[swissie]

A usufruct can be cancelled but it must be on the agreement of both parties. In the event of a usufruct with a Thai spouse. the spouse cannot cancel the agreement without the consent of the foreign partner but may apply to the Courts to have it cancelled in the event of a divorce. If the Court orders the cancellation that does not necessarily mean the Thai spouse will gain full rights as, under Thai law, any assets gained during marriage are marital assets to be split 50/50 and the Court may order the sale of the land in order to divide the assets equally.

In cases of divorce where the assets are unclear or division is contested, it may be best to get a lawyer involved.

Making your dreams of being an entrepreneur a reality

26th Floor Fortune Town

CP Tower 2, 1 Ratchadaphisek Rd

Din Daeng, Bangkok 10400

(Phra Ram 9 MRT Station Exit 1)

Tel: 02-642-0213

Fax: 02-641-1995

Website: www.sunbeltasiagroup.com

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This above comment from SUNBELT-ASIA is not in agreement with some posts here, that indicate that any USUFRUCT can be cancelled by the Thai-Spouse at any time as long the USUFRUCT was established DURING marriage.

I would hope, that SUNBELT-ASIA will step in at this point to issue a clarifiying and final comment as far as this is concerned.

Cheers.

[surayu]

.....

Swissie you forgot to add a vital little disclaimer used by your "choosen" referral: " The Party prepared or provided this agreement in no way accept responsibilities of any claims, nor suits, arising from interpretation, judgment, or understanding of this entire agreement." Traslation: "whatever we write for you, doesn't matter if you are paying us, you are the only responsible person for anything wrong we might do for you, we accept no responsabilities whatsoever for the work we do, in fact, we are having a big laugh at all those which still decided to go ahead knowing this"

Buyer beware!

[surayu]

If the usufruct agreement was made between spouses during marriage it can be voided. From the Civil and Commercial Code:

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.

That little part is a very scary one, someone's wife can decide at any time to cancel an agreement the husband has taken and without him being able to know! What a nightmare this law is!

So, if the original usufructuary manage to transfer the usufruct to another person, can that person be considered as a "third party" in front of the law? as to avoid the usufruct being cancelled

:jap:

[swissie]

Referring to above post nr. 14:

According to my wife, the term USUFRUCT (In Thai= สิทธิเก็บกิน Sithṭhi kĕb kin), means that one can do everything with the property as far as commercial usage is concerned.

BUT THIS SOULD NOT BE CONFUSED WITH "THE RIGHT TO LIVE ON THE PROPERTY UNTIL DEATH" !!!!!!!!!!!!!!! Not same !

There seems to be a legal differenciation between สิทธิเก็บกิน Sithṭhi kĕb kin (Usufruct as we understand it) and "the right to live on property until death only". Absolutely not the same!

And therefore, it would not be registered on the land-title as = สิทธิเก็บกิน Sithṭhi kĕb kin , but in an other thai-phrasing, referring to "the right to live on property until death only".

Again: According to the letter of the thai-law: It's just not the same.

This may arise as the ultimate challenge to all the "Legal-Eagles" that operate in Thailand.

Cheers.

I

[surayu]

According to the niece of my sister in law, a "usufruct" it's simply a fruct being picked up in the US appositedly for U.....sooorryyy

[swissie]

At ease folks, we now have 4 posts concerning this issue: 14/15/16/17.

I am confident, that SUNBELT-ASIA will supply the answers. (The ultimate source of legal advice in Thailand for farangs.) Right ?

Again. This is about 14/15/16/17.

All Farangs, that consider themselfes as not affected by all of this do not need to give any input at all. They are allowed to pay later !!!

Cheers.

[Mobi]

Thanks once again.

I am assuming from Swissie's clear explanation of the law and InterstedObserver's somewhat ambiguous advice, that a wife could invalidate the usufruct, but only after applying to the court.

The decision of the court will then be made having due regard for an equitable distribution of marital assets in accordance with Thai law.

Does that sound about right?

[InterestedObserver]

Referring to above post nr. 14:

According to my wife, the term USUFRUCT (In Thai= สิทธิเก็บกิน Sithṭhi kĕb kin), means that one can do everything with the property as far as commercial usage is concerned.

BUT THIS SOULD NOT BE CONFUSED WITH "THE RIGHT TO LIVE ON THE PROPERTY UNTIL DEATH" !!!!!!!!!!!!!!! Not same !

There seems to be a legal differenciation between สิทธิเก็บกิน Sithṭhi kĕb kin (Usufruct as we understand it) and "the right to live on property until death only". Absolutely not the same!

And therefore, it would not be registered on the land-title as = สิทธิเก็บกิน Sithṭhi kĕb kin , but in an other thai-phrasing, referring to "the right to live on property until death only".

Again: According to the letter of the thai-law: It's just not the same.

This may arise as the ultimate challenge to all the "Legal-Eagles" that operate in Thailand.

Cheers.

That is basically correct; however, the right of superficies and/or habitation gives the holder the right to live on the land or in the house built on the land. Most posters only ask about a usufruct as they assume it includes the buildings, such as a house, which it does not.

Edited June 30, 2011 by InterestedObserver

[InterestedObserver]

Thanks once again.

I am assuming from Swissie's clear explanation of the law and InterstedObserver's somewhat ambiguous advice, that a wife could invalidate the usufruct, but only after applying to the court.

The decision of the court will then be made having due regard for an equitable distribution of marital assets in accordance with Thai law.

Does that sound about right?

1. Section 1469 of the Civil and Commercial Code says nothing about having to apply to the courts in order to void a marital agreement. Practicality is another issue and you can read into the statute whatever you choose.

2. The question was directed at cancellation of a usufruct and not toward division of marital assets during a divorce.

3. The voiding of a marital agreement and the division of marital assets are two distinct and different subjects.

[thaiwanderer]

Making your dreams of being an entrepreneur a reality

before any substantive issues, i really hope none of their correspondence includes that line

[swissie]

Making your dreams of being an entrepreneur a reality

before any substantive issues, i really hope none of their correspondence includes that line

Say what ? I certainly never posted anything like the above under "swissie".

Cheers.

[thaiwanderer]

A usufruct can be cancelled but it must be on the agreement of both parties. In the event of a usufruct with a Thai spouse. the spouse cannot cancel the agreement without the consent of the foreign partner but may apply to the Courts to have it cancelled in the event of a divorce. If the Court orders the cancellation that does not necessarily mean the Thai spouse will gain full rights as, under Thai law, any assets gained during marriage are marital assets to be split 50/50 and the Court may order the sale of the land in order to divide the assets equally.

In cases of divorce where the assets are unclear or division is contested, it may be best to get a lawyer involved.

Making your dreams of being an entrepreneur a reality

26th Floor Fortune Town

CP Tower 2, 1 Ratchadaphisek Rd

Din Daeng, Bangkok 10400

(Phra Ram 9 MRT Station Exit 1)

Tel: 02-642-0213

Fax: 02-641-1995

Website: www.sunbeltasiagroup.com

Are you on Facebook or Twitter?

Receive Live Feeds and Expert Advice

Join The Conversation NOW!

This above comment from SUNBELT-ASIA is not in agreement with some posts here, that indicate that any USUFRUCT can be cancelled by the Thai-Spouse at any time as long the USUFRUCT was established DURING marriage.

I would hope, that SUNBELT-ASIA will step in at this point to issue a clarifiying and final comment as far as this is concerned.

Cheers.

This is your post.

I assumed the words I quoted were Sunbelt's not yours, hence my post above. Perhaps you could clarify?

[swissie]

A usufruct can be cancelled but it must be on the agreement of both parties. In the event of a usufruct with a Thai spouse. the spouse cannot cancel the agreement without the consent of the foreign partner but may apply to the Courts to have it cancelled in the event of a divorce. If the Court orders the cancellation that does not necessarily mean the Thai spouse will gain full rights as, under Thai law, any assets gained during marriage are marital assets to be split 50/50 and the Court may order the sale of the land in order to divide the assets equally.

In cases of divorce where the assets are unclear or division is contested, it may be best to get a lawyer involved.

Making your dreams of being an entrepreneur a reality

26th Floor Fortune Town

CP Tower 2, 1 Ratchadaphisek Rd

Din Daeng, Bangkok 10400

(Phra Ram 9 MRT Station Exit 1)

Tel: 02-642-0213

Fax: 02-641-1995

Website: www.sunbeltasiagroup.com

Are you on Facebook or Twitter?

Receive Live Feeds and Expert Advice

Join The Conversation NOW!

This above comment from SUNBELT-ASIA is not in agreement with some posts here, that indicate that any USUFRUCT can be cancelled by the Thai-Spouse at any time as long the USUFRUCT was established DURING marriage.

I would hope, that SUNBELT-ASIA will step in at this point to issue a clarifiying and final comment as far as this is concerned.

Cheers.

This is your post.

I assumed the words I quoted were Sunbelt's not yours, hence my post above. Perhaps you could clarify?

I pasted Sunbelts Comment in. The comment "Making your dreams of being an entrepreneur a rality" is from Sunbelt (and is probably part of their letterhead), not me. I myself have no desire anymore to become an entrepreneur in Thailand.

Cheers.