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Usufructs being denied now?


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There's one poster in particular who likes to remind us that any contract between husband and wife in Thailand can be voided at any time, I don't know how true that is but I do not believe that marriage allows a spouse to cancel an usufruct, thatt however is my opinion rather than a stated fact, otherwise why would lawyers recommend them.

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I beleive that it is not possible or even reasonable to make a usufruct after the marriage is registered as the lawyer explains it is already part of the marriage property and should be divided in case of divorce. In which cae the foreigner has to sell their share within a year. In the case of the lady who is trying i would suggest a divorce and then make the usufruct and then marry again if desired.

I am hoping in my case that the usufruct can be made before the marriage is registered and even when the marriage is later registered the usufruct and land is not part of the marriage property and so remains reliably in force.

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On second thoughts, in Raesum post above she mentions that it is family land so is probably not part of the marriage property. In which case the husband should be able to make a usufruct but that may take some explaining to the land department :)

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I beleive that it is not possible or even reasonable to make a usufruct after the marriage is registered as the lawyer explains it is already part of the marriage property and should be divided in case of divorce. In which cae the foreigner has to sell their share within a year. In the case of the lady who is trying i would suggest a divorce and then make the usufruct and then marry again if desired.

I am hoping in my case that the usufruct can be made before the marriage is registered and even when the marriage is later registered the usufruct and land is not part of the marriage property and so remains reliably in force.

we made our usufruct whilst we were married

it gives me peace of mind that the mrs could not go to the bank and borrow money on the chanoot, without me consenting....... amongst other things

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Cheeryble, could the wife of the Usufructee cancel the contract if the relationship went sour, without the usufructee's permission, as someone stated earlier in this thread?

I would still put money that a contract like a usufruct between formally married man and wife is not permitted.

Again, that would not mean the wife then runs off to St Tropez.

If a sensible price was paid for the usufruct (approx the value of the property....perhaps better if on paper even above the value of the property) the husband can, if and when the usufruct is negated, sue for return of those funds.

This would essentially mean that he is suing for the property.

A loan agreement would clinch the safety aspect.

The elephant in the room is:

Don't get married.

Shall I repeat?

Don't get married.

(but by all means have the village party and do please make proper arrangements for your wife's security.....perfectly simple without marriage)

Edited by cheeryble
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Cheeryble, could the wife of the Usufructee cancel the contract if the relationship went sour, without the usufructee's permission, as someone stated earlier in this thread?

I would still put money that a contract like a usufruct between formally married man and wife is not permitted.

Again, that would not mean the wife then runs off to St Tropez.

If a sensible price was paid for the usufruct (approx the value of the property....perhaps better if on paper even above the value of the property) the husband can, if and when the usufruct is negated, sue for return of those funds.

This would essentially mean that he is suing for the property.

A loan agreement would clinch the safety aspect.

The elephant in the room is:

Don't get married.

Shall I repeat?

Don't get married.

(but by all means have the village party and do please make proper arrangements for your wife's security.....perfectly simple without marriage)

+1

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Cheeryble, could the wife of the Usufructee cancel the contract if the relationship went sour, without the usufructee's permission, as someone stated earlier in this thread?

I would still put money that a contract like a usufruct between formally married man and wife is not permitted.

Again, that would not mean the wife then runs off to St Tropez.

If a sensible price was paid for the usufruct (approx the value of the property....perhaps better if on paper even above the value of the property) the husband can, if and when the usufruct is negated, sue for return of those funds.

This would essentially mean that he is suing for the property.

A loan agreement would clinch the safety aspect.

The elephant in the room is:

Don't get married.

Shall I repeat?

Don't get married.

(but by all means have the village party and do please make proper arrangements for your wife's security.....perfectly simple without marriage)

+1

but for the people who are younger, and want to get married, i believe an usufruct is an excellent way to protect one's investment during any rough times that may arise during the course of a marriage.

i dont think lawyers on here would recommend it if it could be so easily cancelled without the usufructee's consent

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Cheeryble, could the wife of the Usufructee cancel the contract if the relationship went sour, without the usufructee's permission, as someone stated earlier in this thread?

I would still put money that a contract like a usufruct between formally married man and wife is not permitted.

Again, that would not mean the wife then runs off to St Tropez.

If a sensible price was paid for the usufruct (approx the value of the property....perhaps better if on paper even above the value of the property) the husband can, if and when the usufruct is negated, sue for return of those funds.

This would essentially mean that he is suing for the property.

A loan agreement would clinch the safety aspect.

The elephant in the room is:

Don't get married.

Shall I repeat?

Don't get married.

(but by all means have the village party and do please make proper arrangements for your wife's security.....perfectly simple without marriage)

+1

but for the people who are younger, and want to get married, i believe an usufruct is an excellent way to protect one's investment during any rough times that may arise during the course of a marriage.

i dont think lawyers on here would recommend it if it could be so easily cancelled without the usufructee's consent

It can not be canceled on a whim without the usefructee's consent, it can be canceled in case of a divorce

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Why guess?

Why don't those interested ask specifically on the Ask a Lawyer section?

Mention you've heard that a formally married couple are considered a single legal entity and therefore cannot make contracts like a usufruct between each other.

Is it true?

Sent from my iPad using ThaiVisa app

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This is an answer from a lawyer;

http://www.thailandlawonline.com/ask-a-lawyer/root/usufruct-in-thailand/can-my-thai-wife-cancel-my-usufruct Can my Thai wife cancel my usufruct?

Section 1469 (laws governing property between husband and wife) does apply and when you would divorce the usufruct could be simply terminated by a court as part of the division of assets. After your marriage in Thailand, under Thai matrimonial law, personal and jointly owned marital property between husband and wife is governed by the statutory system of sections 1465 to 1493 Civil and Commercial Code, therefore any agreements between husband and wife made during the marriage affecting their assets (in conflict with the statutory system) could be set aside by the spouses themselves or a court.

Your wife is not able to cancel it when she likes, because usufruct is a registered real property right, but the usufruct can be terminated as the creation is in conflict with the statutory system of property of husband and wife.

Nice to see something specific Jesse and your summation mentioning a usufruct is a real property right (for those who haven't come across the term "real" in law I suggest you look it up).

Where there may be confusion Jesse is your legal advice quoted speaks of a "jointly owned marital property".

This of course cannot apply to land in Thailand except Thai/Thai owned.

The land we're talking about is by law owned solely by the Thai in a Thai/Farang relationship and the farang has no "real" rights over it unless he has contracted as such and the deed has a lien on it.

The question then comes back to can a husband and wife make a contract of this sort?

Sent from my iPad using ThaiVisa app

Edited by cheeryble
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This is an answer from a lawyer;

http://www.thailandlawonline.com/ask-a-lawyer/root/usufruct-in-thailand/can-my-thai-wife-cancel-my-usufruct Can my Thai wife cancel my usufruct?

Section 1469 (laws governing property between husband and wife) does apply and when you would divorce the usufruct could be simply terminated by a court as part of the division of assets. After your marriage in Thailand, under Thai matrimonial law, personal and jointly owned marital property between husband and wife is governed by the statutory system of sections 1465 to 1493 Civil and Commercial Code, therefore any agreements between husband and wife made during the marriage affecting their assets (in conflict with the statutory system) could be set aside by the spouses themselves or a court.

Your wife is not able to cancel it when she likes, because usufruct is a registered real property right, but the usufruct can be terminated as the creation is in conflict with the statutory system of property of husband and wife.

Nice to see something specific Jesse and your summation mentioning a usufruct is a real property right (for those who haven't come across the term "real" in law I suggest you look it up).

Where there may be confusion Jesse is your legal advice quoted speaks of a "jointly owned marital property".

This of course cannot apply to land in Thailand except Thai/Thai owned.

The land we're talking about is by law owned solely by the Thai in a Thai/Farang relationship and the farang has no "real" rights over it unless he has contracted as such and the deed has a lien on it.

The question then comes back to can a husband and wife make a contract of this sort?

Sent from my iPad using ThaiVisa app

Ok Cheeryble. i have posted in the Ask A Lawyer section

Hopefully we will receive a reply today or tommorrow

keep an eye out for the reply if you are interested

here is what i posted (i cannot link to it until it has been approved by a mod.)

"My wife and i got a usufruct from our land office, whilst we were married.

If we were to divorce, could my wife cancel this usufruct, without my consent?

Could anyone cancel the usufruct without my consent?"

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This is an answer from a lawyer;

http://www.thailandlawonline.com/ask-a-lawyer/root/usufruct-in-thailand/can-my-thai-wife-cancel-my-usufruct Can my Thai wife cancel my usufruct?

Section 1469 (laws governing property between husband and wife) does apply and when you would divorce the usufruct could be simply terminated by a court as part of the division of assets. After your marriage in Thailand, under Thai matrimonial law, personal and jointly owned marital property between husband and wife is governed by the statutory system of sections 1465 to 1493 Civil and Commercial Code, therefore any agreements between husband and wife made during the marriage affecting their assets (in conflict with the statutory system) could be set aside by the spouses themselves or a court.

Your wife is not able to cancel it when she likes, because usufruct is a registered real property right, but the usufruct can be terminated as the creation is in conflict with the statutory system of property of husband and wife.

Nice to see something specific Jesse and your summation mentioning a usufruct is a real property right (for those who haven't come across the term "real" in law I suggest you look it up).

Where there may be confusion Jesse is your legal advice quoted speaks of a "jointly owned marital property".

This of course cannot apply to land in Thailand except Thai/Thai owned.

The land we're talking about is by law owned solely by the Thai in a Thai/Farang relationship and the farang has no "real" rights over it unless he has contracted as such and the deed has a lien on it.

The question then comes back to can a husband and wife make a contract of this sort?

Sent from my iPad using ThaiVisa app

Ok Cheeryble. i have posted in the Ask A Lawyer section

Hopefully we will receive a reply today or tommorrow

keep an eye out for the reply if you are interested

here is what i posted (i cannot link to it until it has been approved by a mod.)

"My wife and i got a usufruct from our land office, whilst we were married.

If we were to divorce, could my wife cancel this usufruct, without my consent?

Could anyone cancel the usufruct without my consent?"

I get such a feeling that Cheerybie made up his answer already, and nobody is gonna change that.

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I am quite certain that property, including land, acquired during a registered marriage is considered part of the marriage property. If you as a foreigner not entitled to own land become the owner of land thru divorce or inheritance i beleive you will be given one year to sell it.

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Ok Cheeryble. i have posted in the Ask A Lawyer section

Hopefully we will receive a reply today or tommorrow

keep an eye out for the reply if you are interested

here is what i posted (i cannot link to it until it has been approved by a mod.)

"My wife and i got a usufruct from our land office, whilst we were married.

If we were to divorce, could my wife cancel this usufruct, without my consent?

Could anyone cancel the usufruct without my consent?"

Unfortunately, UKJase, we are only going to get an answer to your specific question rather than a general reply for if a husband can get a usufruct from his wife (or vice versa).

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I get such a feeling that Cheerybie made up his answer already, and nobody is gonna change that.

Actually I'm not certain Jesse, just pretty certain I heard this about husband and wife being a single legal entity who cannot contract together (remember a pre-nup, which is a contract, is made before the marriage).

Which is why I would like the general question to have been asked the lawyer.

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Cheeryble, could the wife of the Usufructee cancel the contract if the relationship went sour, without the usufructee's permission, as someone stated earlier in this thread?

The Thai Civil and Commercial Code is very clear on this:

Section 1469. Any agreement (post-nuptial) 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 yes, any agreement/contract during spouses entered into after being married can be voided not only on divorce, but also any time during the marriage and up to 12 months after the marriage ends. A usufruct is one type of agreement, so it could be cancelled by either spouse without the need for consent from the other spouse.

It is worth noting that the law says that such an agreement "may be avoided". It is not cancelled automatically upon divorce, and if neither spouse chooses to cancel the agreement it is perfectly legal and binding. So while such an agreement won't protect you against your spouse, it can protect your interests against third parties.

Sophon

Edited by Sophon
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I beleive that it is not possible or even reasonable to make a usufruct after the marriage is registered as the lawyer explains it is already part of the marriage property and should be divided in case of divorce. In which cae the foreigner has to sell their share within a year. In the case of the lady who is trying i would suggest a divorce and then make the usufruct and then marry again if desired.

I am hoping in my case that the usufruct can be made before the marriage is registered and even when the marriage is later registered the usufruct and land is not part of the marriage property and so remains reliably in force.

we made our usufruct whilst we were married

it gives me peace of mind that the mrs could not go to the bank and borrow money on the chanoot, without me consenting....... amongst other things

Don't you trust your wife?

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I beleive that it is not possible or even reasonable to make a usufruct after the marriage is registered as the lawyer explains it is already part of the marriage property and should be divided in case of divorce. In which cae the foreigner has to sell their share within a year. In the case of the lady who is trying i would suggest a divorce and then make the usufruct and then marry again if desired.

I am hoping in my case that the usufruct can be made before the marriage is registered and even when the marriage is later registered the usufruct and land is not part of the marriage property and so remains reliably in force.

we made our usufruct whilst we were married

it gives me peace of mind that the mrs could not go to the bank and borrow money on the chanoot, without me consenting....... amongst other things

Don't you trust your wife?

I dont beleive it is a matter of trust. Between a man and a women can we be certain that the relationship will remain sound forever? And if the relationship fails then anger can occur. And then anything can happen.
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The Thai Civil and Commercial Code is very clear on this:

Section 1469. Any agreement (post-nuptial) 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.

I believe this section is specifically because the husband and wife are legally considered one.

In fact I can remember this, with the mis-writing of "avoided" instead of "voided".

There seems to be no protection possible between the parties after marriage…don't even see how a loan agreement can work.

What's more, I can't quite see how there is a protection against third parties.

This is a pretty big deal…..I think it was well worth clarifying and look forward to the lawyer answer.

Edited by cheeryble
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This subject divorce & property never seems to get answered.

People are still asking these questions since ThaiVisa began [12 years ago]


If you look at the amount of viewers/members on here.............?

Many experienced long termers too...


Why are there no actual court stories from people.... y'know accounts of what has actually been ruled on?


All it is, is opinions from yet another dubious 'lawyer' contradicting their contradictions, then

translated and posted [with all good intentions ] on here.


They all need to make money, I just make sure it's not mine....smile.png



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I get such a feeling that Cheerybie made up his answer already, and nobody is gonna change that.

Actually I'm not certain Jesse, just pretty certain I heard this about husband and wife being a single legal entity who cannot contract together (remember a pre-nup, which is a contract, is made before the marriage).

Which is why I would like the general question to have been asked the lawyer.

good news from the lawyer!!

http://www.thaivisa.com/forum/topic/747657-what-happens-with-a-usufruct-upon-divorce

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I get such a feeling that Cheerybie made up his answer already, and nobody is gonna change that.

Actually I'm not certain Jesse, just pretty certain I heard this about husband and wife being a single legal entity who cannot contract together (remember a pre-nup, which is a contract, is made before the marriage).

Which is why I would like the general question to have been asked the lawyer.

good news from the lawyer!!

http://www.thaivisa.com/forum/topic/747657-what-happens-with-a-usufruct-upon-divorce

No typ this into Google "can a usufruct be canceled on divorce" and you get results from all over the world including Thailand, basically all saying the same, and which is different from the answer you got.

So who will be right, one lawyer on Thaivisa or hundreds of others including lawyers that all say the opposite ? I know who I put my money on.

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I have re-asked the lawyer the question with different phraseology.....may glean something.

The lawyer would normally be 100% correct usufruct is a "real" right which is very strong.

The question is whether the usufruct is invalidated if it was improperly made (even if the LO made a lien on it) and what happens then.

My guess IF repeat IF it is invalidated everything rewinds, the property goes under forced sale, the LO refunds the transfer fee :-), and the provider of funds gets them back.

(Again, a forced sale can be quite civilized, you get a fair bit of time, and a "friend" could buy......may not even have to change the sheets).

Sent from my iPad using ThaiVisa app

Edited by cheeryble
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I get such a feeling that Cheerybie made up his answer already, and nobody is gonna change that.

Actually I'm not certain Jesse, just pretty certain I heard this about husband and wife being a single legal entity who cannot contract together (remember a pre-nup, which is a contract, is made before the marriage).

Which is why I would like the general question to have been asked the lawyer.

good news from the lawyer!!

http://www.thaivisa.com/forum/topic/747657-what-happens-with-a-usufruct-upon-divorce

No typ this into Google "can a usufruct be canceled on divorce" and you get results from all over the world including Thailand, basically all saying the same, and which is different from the answer you got.

So who will be right, one lawyer on Thaivisa or hundreds of others including lawyers that all say the opposite ? I know who I put my money on.

I think that the lawyer is partially correct, not on the legal aspect but on the practical situation. I don't think that the land office will cancel a usufruct just because your wife goes down there and asks them to. They will probably require a court order to do so, so your wife would have to go to the courts first. But as clear as the civil code is on this point, I think that would be more or less a formality.

I know I said in my earlier post that a usufruct would not protect you against your spouse, and legally I still don't think it will, but maybe it will psychologically. Going to the court to achieve their goal may be one step further than many/most spouses would want to go.

Sophon

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No typ this into Google "can a usufruct be canceled on divorce" and you get results from all over the world including Thailand, basically all saying the same, and which is different from the answer you got.

So who will be right, one lawyer on Thaivisa or hundreds of others including lawyers that all say the opposite ? I know who I put my money on.

I think that the lawyer is partially correct, not on the legal aspect but on the practical situation. I don't think that the land office will cancel a usufruct just because your wife goes down there and asks them to. They will probably require a court order to do so, so your wife would have to go to the courts first. But as clear as the civil code is on this point, I think that would be more or less a formality.

I know I said in my earlier post that a usufruct would not protect you against your spouse, and legally I still don't think it will, but maybe it will psychologically. Going to the court to achieve their goal may be one step further than many/most spouses would want to go.

Sophon

The wife can only cancel the usufruct in case of a divorce, at other times she will not be able to start a court case for it.

When she wants a divorce and tries to get as much as possible out of it, she will be in the court already, so adding the cancellation of the usufruct is just a formality at that point.

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No typ this into Google "can a usufruct be canceled on divorce" and you get results from all over the world including Thailand, basically all saying the same, and which is different from the answer you got.

So who will be right, one lawyer on Thaivisa or hundreds of others including lawyers that all say the opposite ? I know who I put my money on.

I think that the lawyer is partially correct, not on the legal aspect but on the practical situation. I don't think that the land office will cancel a usufruct just because your wife goes down there and asks them to. They will probably require a court order to do so, so your wife would have to go to the courts first. But as clear as the civil code is on this point, I think that would be more or less a formality.

I know I said in my earlier post that a usufruct would not protect you against your spouse, and legally I still don't think it will, but maybe it will psychologically. Going to the court to achieve their goal may be one step further than many/most spouses would want to go.

Sophon

The wife can only cancel the usufruct in case of a divorce, at other times she will not be able to start a court case for it.

When she wants a divorce and tries to get as much as possible out of it, she will be in the court already, so adding the cancellation of the usufruct is just a formality at that point.

I don't believe that is true at all, the civil code clearly says that any contract entered into between spouses can be cancelled at any time during the marriage by either spouse.

Sophon

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No typ this into Google "can a usufruct be canceled on divorce" and you get results from all over the world including Thailand, basically all saying the same, and which is different from the answer you got.

So who will be right, one lawyer on Thaivisa or hundreds of others including lawyers that all say the opposite ? I know who I put my money on.

I think that the lawyer is partially correct, not on the legal aspect but on the practical situation. I don't think that the land office will cancel a usufruct just because your wife goes down there and asks them to. They will probably require a court order to do so, so your wife would have to go to the courts first. But as clear as the civil code is on this point, I think that would be more or less a formality.

I know I said in my earlier post that a usufruct would not protect you against your spouse, and legally I still don't think it will, but maybe it will psychologically. Going to the court to achieve their goal may be one step further than many/most spouses would want to go.

Sophon

The wife can only cancel the usufruct in case of a divorce, at other times she will not be able to start a court case for it.

When she wants a divorce and tries to get as much as possible out of it, she will be in the court already, so adding the cancellation of the usufruct is just a formality at that point.

I don't believe that is true at all, the civil code clearly says that any contract entered into between spouses can be cancelled at any time during the marriage by either spouse.

Sophon

Read the link I posted in post # 32

When the usufruct is registered with the land office it is in essence not a contract that can be terminated by your wife.

Usufruct is a real right and as a real property right governed by the civil and commercial code book IV PROPERTY and not book III CONTRACTS. This means that once the right of usufruct is registered it is more or less guaranteed by law and to terminate the usufruct your wife would need 1 your consent or 2 a court order to have it removed from the title deed.

BUT

Section 1469 (laws governing property between husband and wife) does apply and when you would divorce the usufruct could be simply terminated by a court as part of the division of assets.

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