Is This Divorce Agreement Possible?

[JJJIIIMMM]

Hi Guys, I have been to see a lawyer, and she has suggested this as a viable route for our future divorce. 

 

She seemed to think that the best way for me would be to make an agreement when we divorce, is that i have to pay my ex-wife XXXX amount every month for say, two years.  In the contract registered at the amphur we would also state that she gave me the right to stay in the house, and that she was transferring all rights of disposal of the land and house over to me,  so i could sell it in say ten years time, and receive all the money from the transaction.  I would also have my current usufruct protecting my right to stay. It would also be written that the house belongs to me. it may also be possible to pre sign power of attorney to me, so that i can sell the property without her being present (but this would only work if she did not remarry and change her surname).

 

She says that these agreements made at the amphur at time of divorce are 100% enforceable.

 

What do you guys think?  A decent proposal you think, that could work for both parties?  I am pretty sure my wife will agree, if the money is OK for her.

 

Part of me is worrying though, as i am sure i read years ago that it states in Thai law that a foreigner cannot have full control over a piece of land, and surely the above solution would give me full control, and so maybe not legal in the eyes of the law

 

I would really like to stay in the house if i could.

[Rhys]

.....dude, run away... faster... the frig door is full of food...   Sound like a set up here... your red flag.

[JJJIIIMMM]

4 hours ago, Rhys said:

.....dude, run away... faster... the frig door is full of food...   Sound like a set up here... your red flag.

 

Why you say that Rhys?

 

If she has to sign the contract at the Amphur on the day of divorce, and it is registered on the divorce agreement, before i pay any money, then surely this is low risk.....

if it is allowed to be registered, then surely it is enforceable.  If it is not allowed, then i will tell my lawyer i am not impressed with her idea, and her fee will be reduced significantly

 

 

[MikeyIdea]

There is a delay between when a mutual divorce at the amphur is "registered" (= all documentation is completed) and when it formally takes effect (not divorced as of date but effective as of date). This is simply because the amphur divorce is ratified by Family court by a process behind the scene

 

Divorce at amphur is equally enforceable Yes. It may be a bit difficult to get complex arrangements into a mutual divorce agreement at the amphur simply because the staff there aren't Family Court judges and they would worry about processing paperwork for a divorce that contains something that the law at the end of the day does not support - Family Court can't ratify it

 

-- i have to pay my ex-wife XXXX amount every month for say, two years

Yes, and duration and change amount up and down during the duration as you both agree on, no problems

-- she gave me the right to stay in the house

Yes enforceable

-- she was transferring all rights of disposal of the land and house over to me,  so i could sell it in say ten years time, and receive all the money from the transaction

The same rule applies for divorce at amphur as in Family court so agreement can clearly state that land and house goes to the western husband. Westerner cannot own land so it must be sold and money goes to the westerner no problem, normally within ONE year. So 10 years? Doubt it, as you say, that gives you full control. You need more lawyers :)

 

-- It would also be written that the house belongs to me.

House is a non-moveable object. You can't own it as such but you can have your name on the building permit I think, and you can be Chao Baan (master of the household) in a yellow or blue tabien baan

-- it may also be possible to pre sign power of attorney to me, so that i can sell the property without her being present 

I do not think that will work

 

Interesting lawyer you have, perhaps even a bit too "liberal". Check the question marks with more lawyers

 

Michael

[MikeyIdea]

The law states that you must sue within 12 months if assets are not transferred - regardless of case still is under appeal (check if your lawyer know that, most Thai lawyers don't) - but the big question here is from what date.

 

I really don't know if the 2 parties can mutually decide for a date 10 years in the future and it starts to count from that date. Very interesting idea of your lawyer. Brilliant actually. 

 

Michael :)

[JJJIIIMMM]

Thanks for your responses MikeyIdea - much appreciated. 

Does anyone else have any experience with a situation like this? 

 

Will I be able to get a divorce agreement drawn up like this, and the amphur will agree to it?  And it will all be enforceable if i had to rely on it further?

[BEVUP]

Your lawyers full of it - just read the posts - not saying all are right but some good experiences

Scenario 

So you say your lawyer can get an agreement for you to have full control over the land until you decide to sell it BS

So then lets say your wife dies (forgetting about all of the above) & you inherit the land (will your lawyer say no worries you can sell it when you like BS ) , by law you must dispose of it within 1 yr so what makes you think your lawyer is going to whip up something that you can have full control of the land when foreigners cant own land 

[blackcab]

...and that she was transferring all rights of disposal of the land and house over to me,  so i could sell it in say ten years time, and receive all the money from the transaction.  I would also have my current usufruct protecting my right to stay...

 

As a non-Thai you can only conduct the sale of real estate if you have a work permit. If we overlook that fact, even if you have the correct work permit, you can only act as an agent and not the principal. If you are receiving the proceeds of the sale, there is an argument that you are the principal as a result of proxy ownership.

 

Forgetting all of that, you need a letter of authority from your ex wife in your favour, where the wording has been pre-approved by the land office. The land office are very precise about this, and if you do not use their form and the exact wording they prefer, they will not process the transaction. Believe me, they will reject your letter of authority if even one word is wrong.

 

You will also need a signed copy of your ex wife's ID card. How are you going to make sure it is a current copy? Lost, expired or address changes will also mean your copy is out of date and unacceptable.

 

If we also forget all of that, the real problem I think you are going to have is this: who is going to cancel your usufruct? It must be cancelled before any sale is made, because I doubt the new owners will agree to you living in the property they just purchased.

 

I honestly do not think the land office will let you, as a non-Thai, acting as what would appear to be a proxy owner, present a letter of authority, cancel your own usufruct, sell the property and keep the proceeds. Remember that the land office is not obliged to process any transaction they have the slightest doubt over. They probably won't refuse point blank, they will just say something like the signature on the letter of authority doesn't match and they now want to see the owner in person.

 

Nothing is impossible though. I would suggest asking this question at your land office. The answer will be free and it will clear up any confusion.

 

Incidentally, there is nothing to stop your wife selling the property at any time. A usufruct does not prevent the sale of a property, although the new owner would have to respect your usufruct.

[BEVUP]

4 hours ago, blackcab said:

...and that she was transferring all rights of disposal of the land and house over to me,  so i could sell it in say ten years time, and receive all the money from the transaction.  I would also have my current usufruct protecting my right to stay...

 

As a non-Thai you can only conduct the sale of real estate if you have a work permit. If we overlook that fact, even if you have the correct work permit, you can only act as an agent and not the principal. If you are receiving the proceeds of the sale, there is an argument that you are the principal as a result of proxy ownership.

 

Forgetting all of that, you need a letter of authority from your ex wife in your favour, where the wording has been pre-approved by the land office. The land office are very precise about this, and if you do not use their form and the exact wording they prefer, they will not process the transaction. Believe me, they will reject your letter of authority if even one word is wrong.

 

You will also need a signed copy of your ex wife's ID card. How are you going to make sure it is a current copy? Lost, expired or address changes will also mean your copy is out of date and unacceptable.

 

If we also forget all of that, the real problem I think you are going to have is this: who is going to cancel your usufruct? It must be cancelled before any sale is made, because I doubt the new owners will agree to you living in the property they just purchased.

 

I honestly do not think the land office will let you, as a non-Thai, acting as what would appear to be a proxy owner, present a letter of authority, cancel your own usufruct, sell the property and keep the proceeds. Remember that the land office is not obliged to process any transaction they have the slightest doubt over. They probably won't refuse point blank, they will just say something like the signature on the letter of authority doesn't match and they now want to see the owner in person.

 

Nothing is impossible though. I would suggest asking this question at your land office. The answer will be free and it will clear up any confusion.

 

Incidentally, there is nothing to stop your wife selling the property at any time. A usufruct does not prevent the sale of a property, although the new owner would have to respect your usufruct.

Glad to see you also recognise the Usufrut Blackcab, been trying to explain that for 6mths  - lost the family house with me still on it

[Mattd]

On 2017-5-23 at 5:30 PM, MikeyIdea said:

There is a delay between when a mutual divorce at the amphur is "registered" (= all documentation is completed) and when it formally takes effect (not divorced as of date but effective as of date). This is simply because the amphur divorce is ratified by Family court by a process behind the scene

 

I am not so sure about this part, when I divorced it was amicable and at the Amphur office with an agreement signed by both parties, the custody of the children and financial settlement etc. in this agreement, the Amphur office issued the divorce certificate to both of us and signed / stamped 3 copies of the agreement, one for each of us and one for filing at the Amphur office, the divorce was full and final on the same day.

[MikeyIdea]

16 hours ago, Mattd said:

I am not so sure about this part, when I divorced it was amicable and at the Amphur office with an agreement signed by both parties, the custody of the children and financial settlement etc. in this agreement, the Amphur office issued the divorce certificate to both of us and signed / stamped 3 copies of the agreement, one for each of us and one for filing at the Amphur office, the divorce was full and final on the same day.

My experience is with children involved, it took a month to get the divorce certificate, this happened a couple of times 6-7 years ago

 

A rule is not a rule is not a rule perhaps :) I don't know, perhaps they only send over cases where there is doubt regarding legality or if the agreement is good for the child 

[Mattd]

3 minutes ago, MikeyIdea said:

My experience is with children involved, it took a month to get the divorce certificate, this happened a couple of times 6-7 years ago

 

A rule is not a rule is not a rule perhaps :) I don't know, perhaps they only send over cases where there is doubt regarding legality or if the agreement is good for the child 

It is probably based on the circumstances of the divorce etc. and possibly on the age of the children at that time perhaps, mine were 13 & 16 at that time.

[MikeyIdea]

13 minutes ago, Mattd said:

It is probably based on the circumstances of the divorce etc. and possibly on the age of the children at that time perhaps, mine were 13 & 16 at that time.

Age of the children is a good point, yes

[PS2]

So in two years when the money dries up you are worth more dead than alive?