Does A Divorce Invalidate A Usufruct Held By The Ex-Husband?

[Mobi]

I think I’ve seen something on this before, but would appreciate

any informed opinion.

The chanod for my house in in my wife’s name (no company involved)
and I have a lifetime usufruct, which is properly registered on the back of the
chanod.

I hold the originals of both documents.

I have been separated for 4 years, and since we broke up, we
have agreed that we will sell the house, divide the proceeds 50/50, and then
get a divorce.

The house remains unsold after 4 years and in the meantime,
my wife lives there, and I pay for monthly maintenance and utilities.

There is case to say she is not interesting in selling, but
I firmly believe that the lure of 5-6 million (her share of the sale value) is
greater than the comfort of staying rent free, or waiting for me to die...

Recently, my wife has been putting pressure on me to divorce
her as she claims that keeping my married name is causing her many hassles in
her daily life – which I can accept.

I am happy to divorce her, but am concerned about the
validity of the usufruct, once we are divorced.

Does the divorce automatically invalidate it?

Or, once divorced, could she then take steps to have it invalidated
on the grounds that she lives there and I am no longer her legal spouse?

I am aware that usufructs are not necessarily the ‘Holy Grail’ that some
think they are, and it is not that hard for a woman to get it invalidated, if she
goes to court. Would a divorce ease that path for her?

I am not saying that she is trying to pull a fast one, but
you can never be too careful, where Thai women are concerned.

Informed opinion would be appreciated, (on the usufruct
question).

Thanks

Mobi

[Khun Jean]

No one seems to know for sure.

A usufruct is a real right and as such it can not just be canceled.

It can most certainly be dissolved by a court order, this means it is up to the judge.

Section 1498. The void of marriage will not create property relation between husband and wife.

In case of marriage has been adjudged void, the property possessed or acquired by either party before or after the marriage as well as the fruits thereof remain as that party's property. As for the property jointly earned, they shall divided equally unless the Court deems it proper and order otherwise by taking into consideration the obligation in the family and earnings of both parties as well as their station in life, including all other circumstances.

interesting read: http://www.samuiforsale.com/family-law/usufruct-in-a-thai-marriage.html

Especially the comments.

Edited March 11, 2013 by Khun Jean

[ThailandInvestmentGuide]

No, divorce does not automatically cancel it but you are right to be cautious.

For what it's worth I am not aware of any judgements whereby a usufruct has been cancelled after divorce, though it would appear that it is possible. If anyone else knows of such a judgement (pref. first-hand!) then please post here and share the details

[Mario2008]

No one seems to know for sure.

A usufruct is a real right and as such it can not just be canceled.

It can most certainly be dissolved by a court order, this means it is up to the judge.

Section 1498. The void of marriage will not create property relation between husband and wife.

In case of marriage has been adjudged void, the property possessed or acquired by either party before or after the marriage as well as the fruits thereof remain as that party's property. As for the property jointly earned, they shall divided equally unless the Court deems it proper and order otherwise by taking into consideration the obligation in the family and earnings of both parties as well as their station in life, including all other circumstances.

interesting read: http://www.samuiforsale.com/family-law/usufruct-in-a-thai-marriage.html

Especially the comments.

The section you qoute is about void of marriage (the marriage is not in accordence with the law), not about division of property in cae of a divorce.

[Khun Jean]

It was just to point out the 'including all other circumstances'.

Up to the judge. Can go any way, anything is possible, no guarantees, whatever is decided etc.

That was not very clear in my post.

As such, laws don't say much if the judge has so much freedom.

And no precedence is used, every case is seen completely separate.

The thing a usufruct has in its favor is that it is a real right, and is in Book IV.

Even a judge can not ignore that and undermine such rights, but TiT.

In my risk assessment a usufruct is a very low risk, even in divorce. But no guarantee.

With a divorce the most important part is the difference between 'Sin Somros' and 'Sin Suan Tua'.

The land is obvious, it is 'Sin Suan Tua' of the wife.

The house will be highly likely considered 'Sin Somros'. A usufruct is what?

'Sin Suan Tua' of the foreigner? Or is it 'Sin Somros'.

Upon divorce this must be decided, before splitting of common property can be judged upon.

Who decides what is 'Sin Somros' and what is not?

Documentation of who paid what? A judges mood or doing the 'right thing'? According to the law? Which law?

Let's say it is considered 'Sin Somros', which means it has to be divided.

But what is the value of the usufruct? Especially when it is given for free.

So many questions and without real experiences it will always be guessing.

Now if you have a usufruct before marriage, or include a third party, then it is clear. The usufruct will stand.

During marriage, it is full with unanswered questions.

Edited March 11, 2013 by Khun Jean

[Mobi]

Thank you gentlemen, your replies are quite useful.

I think you have answered my main concern that the Usufruct would be automatically invalidated. This seems not to be the case, so I breathe much easier.

It may be that my wife has been miss-advised on this, but my impression has always been that she believes in the robustness of a usufruct even more than I do. I really do not think she would engage a lawyer or take the matter through the court. It’s just not her and she is not that bad, but I do have to be cautious.

I'm inclined to believe that she isn't trying to put anything over on me and just wishes to divorce ,(as I do). After all, we have been apart for 4 years and I understand she has a new boyfriend who may not be aware of her marital status.

Does anyone have any idea how the district official at the Amphur will deal with the divorce if we still have this house between us? Do we have to state that we have a joint asset in the divorce papers and our intentions regarding the disposition and division of the property?

In my previous divorces in Thailand, we stated that there were no joint assets and we were not seeking any claims or maintenance payments from each other, so it was all pretty straight forward.

I really don’t want to hire a lawyer, but I am concerned what may be written in Thai, of which I have no knowledge.

[Mario2008]

Divorce at the amphur is actually really simple. You both go their with the marriage certificate and sign the divorce register, rturn the divorce certificate and get the divorce certificate.

At the moment you divorce, you can enter an agreement about the division of assets. As long as you both agree, there is no problem. Given the fact that there are assets involved, you will want to have a lawyer to draw up an agreeable settlement. make sure you both have yor won lawyer.

If you state there are no joined asstes, you wil forgo any entitlements. No alimoney is the law in Thailand, only when you stipulate such in the settlement agreement would you be required to pay so as that is what you would agree to.

[Mobi]

Divorce at the amphur is actually really simple. You both go their with the marriage certificate and sign the divorce register, rturn the divorce certificate and get the divorce certificate.

At the moment you divorce, you can enter an agreement about the division of assets. As long as you both agree, there is no problem. Given the fact that there are assets involved, you will want to have a lawyer to draw up an agreeable settlement. make sure you both have your won lawyer.

If you state there are no joined asstes, you wil forgo any entitlements. No alimoney is the law in Thailand, only when you stipulate such in the settlement agreement would you be required to pay so as that is what you would agree to.

Thanks for that. It's pretty much how I had imagined.As stated, I've already done a couple of them, but there were no assets to divide.

Maybe I could get a simple legal agreement on the house drawn up and get her to read it and agree to it, prior to going to the amphur. I think she would be OK with that and it would save having two lawyers or having to pay for their services to attend the divorce.

[ThaidDown]

Section 1469 covers agreements between husband and wife ...

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.

The key is 'may be voided' ie not automatically voided.As said if in agreement do it at the Amphur.

[TommoPhysicist]

Divorce at the amphur is actually really simple. You both go their with the marriage certificate and sign the divorce register, rturn the divorce certificate and get the divorce certificate.

At the moment you divorce, you can enter an agreement about the division of assets. As long as you both agree, there is no problem. Given the fact that there are assets involved, you will want to have a lawyer to draw up an agreeable settlement. make sure you both have yor won lawyer.

If you state there are no joined asstes, you wil forgo any entitlements. No alimoney is the law in Thailand, only when you stipulate such in the settlement agreement would you be required to pay so as that is what you would agree to.

On the divorce document at the Amphur office you write, in the division of assets box.

House address, chanote number is to be sold and the money from the sale divided equally.

Husband is entitled to be sole tenant at the property until the sale goes through.

That way the previous contract for you to occupy the house (which she may cancel) becomes irrelevant.

Mobi, don't agree to anything else, contracts between husband and wife are not enforcable, except for the division on the divorce form.

Edited March 11, 2013 by TommoPhysicist

[Khun Jean]

That 1469 is tricky. My Thai is not good enough to be sure the translation is correct.

An 'agreement' can be anything. A 'contract' is civil law, a usufruct is property law.

Without the exact wording and references it is difficult to interpret.

You would need a lot of knowledge how a marriage/divorce, civil law and property law influence eachother and which ones in case of conflicts is supreme.

Real rights like leases and usufructs are very strong. If they were not commerce would be very difficult and detrimental to the country.

Edited March 11, 2013 by Khun Jean

[TommoPhysicist]

That 1469 is tricky. My Thai is not good enough to be sure the translation is correct.

An 'agreement' can be anything. A 'contract' is civil law, a usufruct is property law.

Without the exact wording and references it is difficult to interpret.

You would need a lot of knowledge how a marriage/divorce, civil law and property law influence eachother and which ones in case of conflicts is supreme.

Divorce contract at Amphur office trumps everything else.

[Khun Jean]

Knowing you rights would change the contents of what you write down on that divorce contract.

[ThaidDown]

The only reason I posted 1469 was to indicate that the agreement would not automatically be extinguished, as Mobi had alluded to, not to claim that 1469 necessarily applied totally to Usufructs, which as you said are real rights. To me a lot of Thai law is not as precise in its meaning as it could be and using an English translation does not help.

Also if anything ever gets to court the Judges are not so tied to precedent as in some other countries so the better connected lawyer may prevail.

[Thaddeus]

I thought the whole point of a Usufruct was to protect you in just this sort of circumstance, is that wrong?

[TommoPhysicist]

I thought the whole point of a Usufruct was to protect you in just this sort of circumstance, is that wrong?

The whole point in having police is for them to enforce the law, we all know how well that works.

Same, same.

[Morakot]

I thought the whole point of a Usufruct was to protect you in just this sort of circumstance, is that wrong?

This has been answered somehow:

Now if you have a usufruct [signed] before marriage, or include a third party, then it is clear. The usufruct will stand.

[signed] During marriage, it is full with unanswered questions [in terms of a disagreement between those two parties] .

Edited March 11, 2013 by Morakot

[meom]

Divorce at the amphur is actually really simple. You both go their with the marriage certificate and sign the divorce register, rturn the divorce certificate and get the divorce certificate.

At the moment you divorce, you can enter an agreement about the division of assets. As long as you both agree, there is no problem. Given the fact that there are assets involved, you will want to have a lawyer to draw up an agreeable settlement. make sure you both have yor won lawyer.

If you state there are no joined asstes, you wil forgo any entitlements. No alimoney is the law in Thailand, only when you stipulate such in the settlement agreement would you be required to pay so as that is what you would agree to.

On the divorce document at the Amphur office you write, in the division of assets box.

House address, chanote number is to be sold and the money from the sale divided equally.

Husband is entitled to be sole tenant at the property until the sale goes through.

That way the previous contract for you to occupy the house (which she may cancel) becomes irrelevant.

Mobi, don't agree to anything else, contracts between husband and wife are not enforcable, except for the division on the divorce form.

If the house gets sold who has the last word when it comes to the price?

I mean what's stopping the wife from selling the house at a low price (plus take some cash to make up the difference) and send the OP packing with a lot less than what he expected?

[transam]

Divorce at the amphur is actually really simple. You both go their with the marriage certificate and sign the divorce register, rturn the divorce certificate and get the divorce certificate.

At the moment you divorce, you can enter an agreement about the division of assets. As long as you both agree, there is no problem. Given the fact that there are assets involved, you will want to have a lawyer to draw up an agreeable settlement. make sure you both have yor won lawyer.

If you state there are no joined asstes, you wil forgo any entitlements. No alimoney is the law in Thailand, only when you stipulate such in the settlement agreement would you be required to pay so as that is what you would agree to.

On the divorce document at the Amphur office you write, in the division of assets box.

House address, chanote number is to be sold and the money from the sale divided equally.

Husband is entitled to be sole tenant at the property until the sale goes through.

That way the previous contract for you to occupy the house (which she may cancel) becomes irrelevant.

Mobi, don't agree to anything else, contracts between husband and wife are not enforcable, except for the division on the divorce form.

If the house gets sold who has the last word when it comes to the price?

I mean what's stopping the wife from selling the house at a low price (plus take some cash to make up the difference) and send the OP packing with a lot less than what he expected?

Well done. Someone who has learned something.

[TommoPhysicist]

Divorce at the amphur is actually really simple. You both go their with the marriage certificate and sign the divorce register, rturn the divorce certificate and get the divorce certificate.

At the moment you divorce, you can enter an agreement about the division of assets. As long as you both agree, there is no problem. Given the fact that there are assets involved, you will want to have a lawyer to draw up an agreeable settlement. make sure you both have yor won lawyer.

If you state there are no joined asstes, you wil forgo any entitlements. No alimoney is the law in Thailand, only when you stipulate such in the settlement agreement would you be required to pay so as that is what you would agree to.

On the divorce document at the Amphur office you write, in the division of assets box.

House address, chanote number is to be sold and the money from the sale divided equally.

Husband is entitled to be sole tenant at the property until the sale goes through.

That way the previous contract for you to occupy the house (which she may cancel) becomes irrelevant.

Mobi, don't agree to anything else, contracts between husband and wife are not enforceable, except for the division on the divorce form.

If the house gets sold who has the last word when it comes to the price?

I mean what's stopping the wife from selling the house at a low price (plus take some cash to make up the difference) and send the OP packing with a lot less than what he expected?

I wouldn't worry, mysterious death of the guy would probably solve that problem before the house was sold.

[Thaddeus]

I thought the whole point of a Usufruct was to protect you in just this sort of circumstance, is that wrong?

The whole point in having police is for them to enforce the law, we all know how well that works.

Same, same.

In all seriousness, what's the point then (not the police obviously, we all know why they exist)

What is the point of spending money on lawyers fees to draw up a contract to protect you only to find that when it all goes tits up, it doesn't protect you at all.

Oh.. yeah... lawyers. Thailand, Thai Lawyers.... say no more.

[Mobi]

Divorce at the amphur is actually really simple. You both go their with the marriage certificate and sign the divorce register, rturn the divorce certificate and get the divorce certificate.

At the moment you divorce, you can enter an agreement about the division of assets. As long as you both agree, there is no problem. Given the fact that there are assets involved, you will want to have a lawyer to draw up an agreeable settlement. make sure you both have yor won lawyer.

If you state there are no joined asstes, you wil forgo any entitlements. No alimoney is the law in Thailand, only when you stipulate such in the settlement agreement would you be required to pay so as that is what you would agree to.

On the divorce document at the Amphur office you write, in the division of assets box.

House address, chanote number is to be sold and the money from the sale divided equally.

Husband is entitled to be sole tenant at the property until the sale goes through.

That way the previous contract for you to occupy the house (which she may cancel) becomes irrelevant.

Mobi, don't agree to anything else, contracts between husband and wife are not enforcable, except for the division on the divorce form.

Thanks for this. I had always thought that there was a section in the Amphur divorce document to state what had been agreed between the two parties, and you have confirmed it.

So I guess I just need to take someone with me who is sufficiently educated to read what is written in the 'division of assets' box, and make sure it is what I have agreed to.

[Mobi]

Divorce at the amphur is actually really simple. You both go their with the marriage certificate and sign the divorce register, rturn the divorce certificate and get the divorce certificate.

At the moment you divorce, you can enter an agreement about the division of assets. As long as you both agree, there is no problem. Given the fact that there are assets involved, you will want to have a lawyer to draw up an agreeable settlement. make sure you both have yor won lawyer.

If you state there are no joined asstes, you wil forgo any entitlements. No alimoney is the law in Thailand, only when you stipulate such in the settlement agreement would you be required to pay so as that is what you would agree to.

On the divorce document at the Amphur office you write, in the division of assets box.

House address, chanote number is to be sold and the money from the sale divided equally.

Husband is entitled to be sole tenant at the property until the sale goes through.

That way the previous contract for you to occupy the house (which she may cancel) becomes irrelevant.

Mobi, don't agree to anything else, contracts between husband and wife are not enforcable, except for the division on the divorce form.

If the house gets sold who has the last word when it comes to the price?

I mean what's stopping the wife from selling the house at a low price (plus take some cash to make up the difference) and send the OP packing with a lot less than what he expected?

Yes, this is always a possibly, but unlikely as I am the only one bringing potential agents and buyers to view the property.Anyway,knowing her, I doubt she would try do do anything like that.

Quite frankly, after having this hanging over my head for four years I wouldn't particularly care if she did make a bit extra on the side. In fact, I might even be prepared to offer her more than 50% if she refused to go with a low offer.

The day I get this <deleted> property sold and a bit of cash in my bank account, I will have one almighty celebration.