How to save my asset in case of divorce ?

[GOLDBUGGY]

After reading all these Posts from others, I feel like I should write another as you were given a lot of false information and advice which may effect your decision.

First of all you can Lease Property from your wife. I don't know why someone said you can't. You did it didn't you? I am of course assuming that you registered this lease at the Land Titles Office. If all you have is a signed paper from your wife it is not a legal lease. But to put you at ease I just Leased Property from my wife less than 6 months ago for Life (Usufructs) using a Lawyer and later Registered at the Land Titles Office.So I know it can be done as I just did it.

Secondly, a 30 Year Lease is exactly that. Only you can cancels this Lease and nobody else. Why someone would tell you that if you Divorce your wife the lease ends, is beyond me. A Divorce has nothing to do with that and does not effect your present lease whatsoever. To go one step further in the event that your wife dies before you, who ever gets this property willed to them still have to honor this lease.

Thirdly, nobody legally can sell this property as long as your lease is still in effect. As mentioned only you can cancel this lease, or your death, or the 30 year period has passed, which all cancel this lease. So in order to sell this property you have to cancel your lease first, leaving you vulnerable. Perhaps get a lawyer involved then or have the buyer split his payment with half to you and the other half to your wife. Ask for 5 M Cash! Also have some legal signed document somewhere!

Fourthly, buying land or property set up by a fake company, or setting up a fake business with 51% Thai Owned - 49% Foreign Owned just to buy property is not legal in Thailand. You are breaking the law if you do this. Many have and are getting away with it, but the hammed may fall one day and you could find yourself without that house. So unless you like looking over your shoulder the rest of you life do everything legal.

[Beetlejuice]

Best way of protecting assets from a wife.

Keep it in a bank account in another country, preferably one she doesn't have a VISA to visit, and don't tell her the money or the account exists.

Yes finally i think it's the best solution i will send back my money to overseas. Thanks

The land was puirchased illegally.

You have no rights or juristition over it whatsoever.

[TallGuyJohninBKK]

First of all you can Lease Property from your wife. I don't know why someone said you can't. You did it didn't you? I am of course assuming that you registered this lease at the Land Titles Office. If all you have is a signed paper from your wife it is not a legal lease. But to put you at ease I just Leased Property from my wife less than 6 months ago for Life (Usufructs) using a Lawyer and later Registered at the Land Titles Office.So I know it can be done as I just did it.

A husband and wife, already married, can execute a lease together. But, under Thai law, either party to a marriage can unilaterally void any legal agreement between them at any time during the marriage or within one year thereafter.

Where a husband and wife lease still provides protection is if one of the spouses were to die. In that case, the inheritors of the deceased spouse would still be bound by the lease. It's only the husband or the wife themselves that are entitled to cancel it during the marriage or within one year of a divorce.

But, in the OP's case, he indicated he executed the lease with the woman BEFORE they were legally married. So, the lease would be binding on them during the marriage and probably even in the event of a divorce.

Here's the actual language, in translation, from Thai family law. I'd assume it applies to leases of property, unless anyone can show otherwise:

http://www.bia.co.th/033.html

Edited June 3, 2015 by TallGuyJohninBKK

[coulson]

If you have not made a prenuptial before marriage all assets are shared between you and your wife after marriage.

If you make a prenuptial and you don't maintain it, as in regular agreeing on who owns what, it deludes when you get more property or it increases in value.

If you are legally married in Thailand you can not lease a property from your wife.

If you divorce your wife is entitled to half of your assets including savings and investments.

Maybe a comforting thought, it's like this in most of the world ;-)

If you are legally married in Thailand you can not lease a property from your wife. - Really? heard of many people mentioning this, attaching a note to the chanote etc.... maybe they are talking about gf, but I'm pretty sure they referred to wife - as in the OP case.

If you divorce your wife is entitled to half of your assets including savings and investments. - Only those accumulated after the marriage!

[GOLDBUGGY]

Under Thai family law, assets that a person owns prior to marriage generally continue to be separate/individual property in the event of a subsequent divorce.

It's assets that are acquired during a marriage that are generally considered community property and to be divided evenly in the event of a divorce.

However, the OP as a farang can't own land in his own name under Thai law. So it sounds from his post, like he gave the money for the land purchase prior to getting married and the land was acquired in the woman's name prior to the marriage.

In that event, the land was individual property of the wife prior to marriage and her property entirely in the event of a divorce -- just as it was during the marriage.

Now if the two divorce, she still owns the land, but I'd assume the OP still has the 30-year lease hold and whatever use that entitles him to that wouldn't automatically be broken because of the divorce.

Ok to resume, i used my own asset and i can prove to purchase a land to my thai gf, then we signed a leasing contract, then we built a house on it and then we get married. So in your opinion, in case of divorce the judge could break the lease and the property won't split 50/50... So if i don't find any agreement with my wife before to divorce, i will get nothing.

If you used your money to purchase Thai land in the name of a single (unmarried) Thai woman who LATER become your wife, the land is hers 100% during your marriage and 100% in the event of a divorce. Note, I said, the LAND. You are not entitled to buy land under Thai law, so presumably it was purchased/recorded in her name prior to your marriage with your money. Thus, pre-marriage property of hers... she owns it 100%. You can think of your money as a gift to her that's not recoverable.

Now, apart from the land, if you spent your money to build a house or make other improvements ON that land PRIOR to getting married, then you at least have an arguable case to claim back at least the value of those improvements in the event of a divorce.

If you spent your money DURING your marriage to build a house or make improvements there, my guess is you thus converted your money at that point into marital (shared) community property. So any building you did or improvements you made DURING the marriage would be divided equally, or at least the value of them, in the event of a divorce.

As for the lease, you really ought to talk with a family law attorney about that. My guess is that the lease, if executed between the two of you prior to your marriage, would not be canceled or otherwise impaired if the two of you ended up getting divorced. Don't confuse the ownership of the land (which belongs to your wife) with your individual rights to use the land (and/or house) as provided by a legal contract (the lease).

My guess is, you'd still have whatever rights you were entitled to under the lease, even after a divorce.... Unless you negotiated them away somehow as part of a divorce settlement. But again, the lease is something you'd best check with an attorney about -- if you're thinking you're headed for divorce.

Ohh... one other detail... that's assuming that you finalized the lease BEFORE you were legally married in an amphur proceeding (village ceremonies don't count--only the amphur registration and the date of it is legal). If you finalized the lease AFTER you were legally married, there's a good chance that your wife would be entitled to break the lease at will (although she might not know that). That's because, under Thai law, any contract executed between a husband and wife can be voided by either party any time during the marriage or up to 1 year after a divorce.

Some very good points indeed and so right you are in most of them.

But I don't buy your last statement about voided contracts between husband and wife. It may apply to some things but I never heard of it relating to property. If what you say is true than the Marriage Contract can also be declare null and void by either party, which we know is not true.

[nithisa78]

The greatest gift that you can give to others is the gift of unconditional love and acceptance.

Brian Tracy

[GOLDBUGGY]

Thanks a lot That's exactly what you said, we don't plan to divorce, i just want to be informed of all worst case scenario could happens.

Worse case scenario ...... she has you killed.

or read the 65M Baht Irish thread ........ she forged his signature at the land office to give up the lease.

The Very Worse Case Scenario???

You kill her before she can do these thing to you but you get caught!

[GOLDBUGGY]

First of all you can Lease Property from your wife. I don't know why someone said you can't. You did it didn't you? I am of course assuming that you registered this lease at the Land Titles Office. If all you have is a signed paper from your wife it is not a legal lease. But to put you at ease I just Leased Property from my wife less than 6 months ago for Life (Usufructs) using a Lawyer and later Registered at the Land Titles Office.So I know it can be done as I just did it.

A husband and wife, already married, can execute a lease together. But, under Thai law, either party to a marriage can unilaterally void any legal agreement between them at any time during the marriage or within one year thereafter.

Where a husband and wife lease still provides protection is if one of the spouses were to die. In that case, the inheritors of the deceased spouse would still be bound by the lease. It's only the husband or the wife themselves that are entitled to cancel it during the marriage or within one year of a divorce.

But, in the OP's case, he indicated he executed the lease with the woman BEFORE they were legally married. So, the lease would be binding on them during the marriage and probably even in the event of a divorce.

Here's the actual language, in translation, from Thai family law. I'd assume it applies to leases of property, unless anyone can show otherwise:

PS0959.jpg

http://www.bia.co.th/033.html

Technically a Husband and Wife can void any Contract they made together during the marriage but you are missing at some very important points here.

The first point is that they can't just say I void this contract we made. They need to bring this up in court in front of a Judge, for him to decide. There can be many good reasons for this and not all just to screw some Foreigner out of his home.

For example that's say the during the marriage the husband and wife made some employment contract together in a small part-time business they own. It is not uncommon or illegal in Canada that the lowest wage earner earns the most money from the business for tax purposes. So let's say now that the Foreigner employs his Thai Wife under contract to work for so much and for so many years.

But now since the Divorce she can't stand him and can't stand to be near him. Maybe he even beats her and the reason for the Divorce. So you can see now there would be no point in forcing this woman to honor the Contract she made with her husband while married and a Judge would void it.

To void Contracts made between Husband and Wife a Judge looks at two principle things:

1) Would this spouse enter into this contract under the same terms and conditions if he was not married to the other spouse at his time. If the answer is yes then this Contract would not be made void.

2) Would a Contract that was entered by the spouses during the marriage benefit one party more than the other. If the answer is yes then this Contract would be voided.

To simply say any Contract made between a married couple can be made null and void after a Divorce is a farce. To say a Judge can make any Contract null and void would be more correct, and as they can do just about anywhere else in the World.

For me to predict what a court may decide is beyond my comprehension. I have known excellent Family Men, who were also great fathers lose visitation rights to their children in Divorce Court all because hiswife was cheating on him. I have also known other men who were never at home, fooling around all the time on the wife, who could care less for their kids, and get equal right. You do to probably. So who knows!

Here is 2 Links dealing with Property Rights and Contracts of Married Spouse in Thailand so others can decide for themselves.

http://www.samuiforsale.com/family-law/thai-marriage-and-contracts-between-husband-and-wife.html.

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

[TallGuyJohninBKK]

Well, since you mentioned usufructs in your case...the first link you posted above includes the following discussion:

Thai marriage laws recognize the special relationship between husband and wife in section 1469 of the Civil and Commercial Code and gives both spouses the right (without grounds) to void any agreement concluded between them during marriage. This means for example that a right of usufruct given by one spouse to the other during the marriage can be voided (read more in the comments to this article)

- or as the Civil and Commercial Code states: '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 is not affected thereby'.

This also means that if a Thai spouse has accepted property as a gift from the personal property of the foreign spouse who in return is given a right of usufruct over the property, both the gift and the usufruct could in theory be voided by either spouse (if concluded during marriage). This also means that when property is registered on the name of a Thai spouse it does in a divorce not automatically mean that she gets to keep it all. Often it is much more complicated but a usufruct contract between husband and wife does not offer the often expected straight forward protection for the foreign spouse.

The article seems to be saying: usufructs executed between a husband and a wife during marriage in Thailand could later be voided by either spouse, and note the added aspect, "without grounds."

The article seems to in large part support what I posted above.

And I don't see anything in the second article that contradicts what's stated in the first.

You're talking above about a judge having to weigh and decide such things. But provided the agreement was executed DURING the marriage and not before it, the law seems pretty clear... read again the phrase "without grounds."

However, in the OP's case, his "gift" of money to buy the land and build the house was done, he states, BEFORE the marriage, and he says the lease was executed before the marriage. So none of that would be voidable by either party. The wife keeps the land, he keeps the lease, and it's up to the two parties to decide if she wants to buy him out of the lease, or let him continue with it.

Edited June 3, 2015 by TallGuyJohninBKK

[GOLDBUGGY]

Well, since you mentioned usufructs in your case...the first link you posted above includes the following discussion:

Thai marriage laws recognize the special relationship between husband and wife in section 1469 of the Civil and Commercial Code and gives both spouses the right (without grounds) to void any agreement concluded between them during marriage. This means for example that a right of usufruct given by one spouse to the other during the marriage can be voided (read more in the comments to this article)

- or as the Civil and Commercial Code states: '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 is not affected thereby'.

This also means that if a Thai spouse has accepted property as a gift from the personal property of the foreign spouse who in return is given a right of usufruct over the property, both the gift and the usufruct could in theory be voided by either spouse (if concluded during marriage). This also means that when property is registered on the name of a Thai spouse it does in a divorce not automatically mean that she gets to keep it all. Often it is much more complicated but a usufruct contract between husband and wife does not offer the often expected straight forward protection for the foreign spouse.

The article seems to be saying: usufructs executed between a husband and a wife during marriage in Thailand could later be voided by either spouse, and note the added aspect, "without grounds."

The article seems to in large part support what I posted above.

And I don't see anything in the second article that contradicts what's stated in the first.

You're talking above about a judge having to weigh and decide such things. But provided the agreement was executed DURING the marriage and not before it, the law seems pretty clear... read again the phrase "without grounds."

However, in the OP's case, his "gift" of money to buy the land and build the house was done, he states, BEFORE the marriage, and he says the lease was executed before the marriage. So none of that would be voidable by either party. The wife keeps the land, he keeps the lease, and it's up to the two parties to decide if she wants to buy him out of the lease, or let him continue with it.

Well you need to read the full article, and as I linked it, to get the full understanding of this, and not just pic out bits and pieces that seems to fit what you said. Also the (read more) part that I also linked. But you did copy and paste some stuff we can talk about.

It does say a unufruct between husband and wife can be voided "without grounds".

Did you notice the word "can" here? This means it is possible! Thus doesn't mean automatically and as you first suggested. It is only possible through a Court Ruling. The "without cause" means they don't need a reason to apply to the court to have a Contract between them voided. They simple may just hate each other now, and don't want anything to do with each other, which this Contract between them may not allow for this.

But did you know that a Judge can cancel any Contract between anyone, and not just a married couple, or change any part of it? In fact this happens a lot in the West and more than here. When you get a Credit Card for example you make a signed agreement with them, which by virtue is a Contract. If you owe them money but can't afford to pay and file for Bankruptcy, a Judge will most likely clear this debt. He will cancel this Contract, where you cut up your Credit Card and the Credit Card Company cancels your account, and no further payment is required.

As I already mentioned these laws are not put into place to screw some Foreigner out of his home. These laws apply to Thais to! Concerning a "unufruct" consider for a moment you and your wife buy a property in a village next to the in-laws and make a unufruct in that you are the Leaser. All is well and good for awhile but then things go South and you both agree on a Divorce. You stay their for the time being and your wife moves back home.

As you can easily see from this example this may not be a good position for either party to be in. So they may apply to the Court to have a Court Order which voids this Unufruct Contract and the property sold, with the proceeds split 50-50. As mentioned by your post, the Thai Wife doesn't automatically get to keep the property.

A judge will look to see if you would have entered into this agreement if you were not married at the time. In this case more likely not. He will also look if one party will benefit more than the other party if this Unufruct Contract was broken. If the sale proceeds are split then he would more likely void this Contract.

But if there was ever a General Golden Rule concerning all this, it would be that the a Man usually gets screwed in any Divorce and no matter where he lives. So I would not expect it to be much different here either.

[TallGuyJohninBKK]

I did read the entirety of both articles you linked to, and I'd say my summary of them was fair and accurate, including the excerpts I posted.

Yes... the language says can... meaning either the husband or wife CAN void their agreement if either one wants to. No justification or grounds required. Nothing to prove.

I'm just quoting/excepting the articles you linked to above. The stuff you're talking about about a judge having to rule, and suggesting it's somehow discretionary on the court's part, is entirely your statement and not coming from the articles at all.

Given the language in the Thai law, there really isn't a lot of discretion to be exercised there -- unless as the statute states, there are interests of some third party that would be harmed by the voiding.

Edited June 4, 2015 by TallGuyJohninBKK

[Maestro]

I have removed two off-topic posts.

Also all posts referring to a usufruct and all posts referring to a lease contract made during marriage are off topic in this thread, but they may be of general interest to some readers. Just the same, let us try to get back on topic, the salient points of which are as follows:

1. 13 years ago, arisa2015 gave 5 million Baht to a female Thai national, presumably by means of a bank transfer from an account in his name outside Thailand to an account in the Thai national's name in Thailand.
2. Subsequently, the Thai national bought a piece of land with a house on it for 5 million Baht.
3. Subsequently, the Thai national leased the land and house to arisa2015 for a period of 30 years. Presumably, this lease is recorded on the land title deed.
4. Subsequently, arisa2015 and the Thai national married.
5. Question: in case of a divorce, how can arisa2015 "save" his asset, which he mistakenly believes to be the leased land and house?

[Puccini]

Ok to resume, i used my own asset and i can prove to purchase a land to my thai gf, then we signed a leasing contract, then we built a house on it and then we get married...

Are you quite sure about this? Do you gave a contract with the Thai woman, to whom at that time you were not married, to the effect that

1. you agree to give her a certain sum of money
2. she agrees to use that money to buy land in her name but the land is really for you

[TallGuyJohninBKK]

1. Question: in case of a divorce, how can arisa2015 "save" his asset, which he mistakenly believes to be the leased land and house?

Part of the discussion above was necessary to establish the legal framework around the OP's situation.

His gift of funds for the land purchase was before the marriage, as was his lady acquiring the land and executing a lease with him.

Thus, it seems, the best course in the event of a divorce would be for him to leverage his rights to continue leasing the land as part of some kind of financial settlement with the wife/ex-wife to return some portion of his original purchase funds.

If she's not willing to make some financial amends with him, he in theory can continue to sit as a lessee on the land she'd continue to own post the divorce and presumably she'd be unable to do much about it. From all indications, the pre-marriage long-term lease ought to remain valid post any divorce between the two parties.

Although, there are stories that float around these parts about what can happen to defiant farangs who insist on remaining in their homes post-divorce on land owned by the ex-wife under the terms of leases and such. Like angry relatives resorting to violence or the new Thai boyfriend of the ex and his motocy driver friends coming by for an unfriendly chat.

[Ghostnigel]

i bought a house with a land 5M THB before to get married with my thai wife and i signed with her a 30 years leasing contract (wrote on chanote title).

Does that mean that the house was bought before the marriage ? If that is the case then there is no 50/50 split, its hers.

You have a 30 year lease. If the wording of the lease allows then you can sell the lease.

If the house/land is currently in the wifes name then you cannot sell it, only the wife can, but with the lease who would want it..

To realise the full value would require you both to cancel the lease on the chanote and then sell. Legal documents would of course be required to be in place governing the split of monies received.

You know arisa2015 ...I did overlook that line you wrote----which as Thaidown has written does alter it a lot. If you have a verbal agreement with her to split the sale money 50-50.........I would try to transfer that into writing at a lawyers ASAP

If you do that, alarm bells will start ringing in her head...why would she sign away 5M baht? when she already owns the property worth 10M baht outright....you cannot beat the ol' adage, What's yours is hers, What's hers is hers....no way on earth will she sign that away.

[MaeJoMTB]

Normally in Thai divorce court,

Any contested asset, the judge asks each person to reveal the source of the financing.

If neither can produce the paper trail, the asset is declared joint marital property.

As it is against Thai law for a Thai to buy land with money provided by a foreigner, it seems unlikely the ruling will be in her favor.

Gifts between husband and (prospective) wife are also reclaimable under Thai law.

Someone I know in CM was given the entire property back when his wife stated in court, he gave her the money to buy land as a gift.

[Ghostnigel]

If your wife wants to buy the lease back from you, what is it worth? What would be rent per month for a 10M baht house...25,000 bht? Over 17 years (the remainder of the 30 year lease) would be 5.1M Bht....there you go, sorted.

[TallGuyJohninBKK]

Gifts between husband and (prospective) wife are also reclaimable under Thai law.

Do you have any source to back up what you're claiming here?

Perhaps if the husband used his personal funds DURING the marriage...

But I don't know of any provision in Thai law that would apply to funds gifted BEFORE a marriage, as is the case in the OP's situation.

[Puccini]

...

As it is against Thai law for a Thai to buy land with money provided by a foreigner, it seems unlikely the ruling will be in her favor.

...

Have you got a link to that law? To the best of my knowledge, there is no such law.

[markeewan]

If you bought the house before marriage and it is in your wife's name then it is not your asset to sell, although you still hold the lease which has some value. The property purchased with proceeds and the extra cash may become marital property once she sells it if she doesn't specifically identify it as her property, in which case you would be entitled to 50% upon divorce.

You might consider posting this question in the Ask the Lawyer section.

I see this is now answered in the Ask the Lawyer section.

[TallGuyJohninBKK]

I see this is now answered in the Ask the Lawyer section.

I never understand two things...

1. Why people post non-helpful posts like this, when they just as easily could have linked to or excerpted the answer that was given, so everyone reading in this thread could see it...without having to go searching for it.

Firstly, you say you bought the house/land before marriage which means the property belongs to your wife. You only have a claim if it was bought within the marriage. She leased it to you (probably for 30 years) but that doesn't make you the owner. Therefore you cant sell the property - it's not yours.

Your lease is secure but any sale is in your wife's hands. You are not entitled to anything. You cant secure any money from the sale as it simply is not yours.

http://www.thaivisa.com/forum/topic/829820-how-to-save-my-asset/

And 2... Expecting that free legal advice given in Thailand on a forum is going to have much value....

Yes, the attorney is technically correct in what he said above based on the facts that were given.

But if he were actually representing the best interests of his client instead of just stating the law, instead of merely saying "you are not entitled to anything," he would have at least pointed out that the OP having a long-term and valid lease even post-divorce on the land presumably gives him some leverage in dealing with the spouse/ex-spouse property owner. But, of course, he didn't broach that.

[louse1953]

I plan on doing A pre nump in my country,and have her do A pre nump in my country also.I'm thinking that anything that I buy in Thailand will be half hers if we divorce.But in my country she won't get any money.

Don't bet the house on it mate.Depends on the law in your country.In Oz you cant sign away your legal rights.

[louse1953]

I have removed two off-topic posts.

Also all posts referring to a usufruct and all posts referring to a lease contract made during marriage are off topic in this thread, but they may be of general interest to some readers. Just the same, let us try to get back on topic, the salient points of which are as follows:

1. 13 years ago, arisa2015 gave 5 million Baht to a female Thai national, presumably by means of a bank transfer from an account in his name outside Thailand to an account in the Thai national's name in Thailand.
2. Subsequently, the Thai national bought a piece of land with a house on it for 5 million Baht.
3. Subsequently, the Thai national leased the land and house to arisa2015 for a period of 30 years. Presumably, this lease is recorded on the land title deed.
4. Subsequently, arisa2015 and the Thai national married.
5. Question: in case of a divorce, how can arisa2015 "save" his asset, which he mistakenly believes to be the leased land and house?

Point 2 is wrong.The Thai national only bought the land.There was no house on it.

[Maestro]

From the OP:

"13 years ago, i bought a house with a land 5M THB before to get married with my thai wife"

But you are probably right, I believe he contradicted himself in a later post and we are left to guess which of the two versions is correct.

[KonaRain]

Best way of protecting assets from a wife.

Keep it in a bank account in another country, preferably one she doesn't have a VISA to visit, and don't tell her the money or the account exists.

Careful, one day She'll find a bank statement..bam!

Keep it online, maybe ANOTHER email account..with an easy to remember password, initals and birth date numbers work well..Aloha