Marriage may be considered as the strongest and perhaps the most poignant union between two persons but there may be legal ramifications that have a profound effect on a person’s economic, social and political standing. Of particular consequence is the creation of a property relation between the spouses. In this, the property regime chosen or agreed upon by the parties shall govern the ownership, management, allocation and distribution of income and properties acquired during the marriage. Unfortunately, most marital conflicts originate from a misunderstanding of how the different principles regarding property relations operate. As a result, it is advisable to have a clear and practical knowledge on the different rules which govern this sensitive part of matrimony.
Marriage in Thailand is governed by the Civil and Commercial Code (CCC). Under the said law, the property rights of the spouses is determined by a prenuptial or premarital agreement entered into prior to the celebration of the marriage. In the absence of such an agreement, the provisions of the Code shall apply in a suppletory manner.
A prenuptial or premarital agreement is defined as a legal document entered into between the prospective spouses prior to their marriage that governs the relations of the parties with regard to their properties. The law of Thailand Prenuptial Agreement requires that such document be in writing and signed by the parties and by at least two (2) other witnesses. Moreover, the agreement must be entered in the Marriage Register at the time of the marriage registration in Thailand by being annexed thereto. Failure to observe the following requirements would result in having the entire agreement being declared null and void.
The spouses are given ample freedom to dictate the terms and conditions that would govern their property rights. However, stipulations that are contrary to law, good morals, public policy or those that would prevent the operation of Thai law are legally impermissible. Furthermore, a validly executed prenuptial agreement remains immutable during the existence of a marriage except only in the case where a court sanctions the alteration of its terms and conditions. Moreover, the provisions found in a Thailand prenuptial agreement operate only between the spouses and do not adversely affect the interests of third persons acting in good faith. In the event that a court decides in favor of changing the terms and conditions found in a prenuptial agreement, the law would still protect the interest of third persons who have acted and relied on its conditions. And so, persons such as creditors need not worry as the law intends to protect their interest despite the change of property relation between the spouses.
Thailand marriage law differentiates two (2) kinds of properties: Personal property (Sin Suan Tua) and Communal property (Sin Somros).
Personal properties or Sin Suan Tua are those properties the ownership of which does not change despite the celebration of the marriage. These are kept separate from the mass of properties that make up the communal property and are exclusively owned by only one spouse who exercises complete and absolute control over them. As a result, the owner-spouse is, as a rule, free to dispose of his personal property without having to account such disposition to the other spouse. Moreover, properties acquired by selling, bartering or utilizing personal properties are also considered as personal in nature. The Civil and Commercial Code enumerates these kinds of properties as follows:
- Property belonging to either spouse before marriage;
- Property for personal use, dress or ornament suitable for station in life, or tools necessary for carrying on the profession of either spouse;
- Property acquired by either spouse during marriage through a will or gift;
- Khongman or marriage gifts offered to the woman’s family as a sign of his sincere intentions.
On the other hand, Communal property or Sin Somros are those properties the ownership of which transfers to both of the spouses upon and during the celebration of the marriage. The rules on joint ownership apply in determining the rights each spouse has on the property. Thai law enumerates the following properties as community in nature:
- Property acquired during marriage;
- Property acquired by either spouse during marriage through a will of gift made in writing if it is declared by such will or document of gift to be Sin Somros;
- Fruits of Sin Suan Tua.
Ownership and management over these are vested jointly in favor of the spouses unless sole administration has been conferred in favor of one. Furthermore, the law requires the consent of the other spouse when dealing with communal property. As a general rule, prior permission is needed for the manager-spouse to exercise acts of dominion over communal property. In the event that such consent has not been obtained, the law grants the aggrieved spouse the remedy of resorting to court action in revoking any act of disposition made by the manager-spouse unless such spouse ratified such act or the person to whom the property was disposed acted with good faith and paid in due course. Also, the aggrieved spouse may petition the court to remove the erring spouse as manager and ask that he or she to be named as manager instead.
Note that in cases of doubt, the law presumes that a property is communal or Sin Somros.
Debts and obligations personal to a spouse are, as a general rule, initially satisfied with his or her own personal property. In the event such property is not sufficient, the creditor is given the right to exhaust the communal property of the spouses. However, if both spouses are jointly liable for a particular obligation, both of these properties would answer for the obligation. The law enumerates such obligations as follows:
- Debts incurred in connection with management of household affairs and providing for the necessaries of the family, or maintenance, medical expenses of the household and for proper education of the children;
- Debts incurred in connection with the Sin Somros;
- Debts incurred in connection with a business carried on by the spouses in common;
- Debts incurred by either spouse only for his or her own benefit but ratified by the other.
In conclusion, Thailand marital property relation is a delicate subject matter not usually discussed in fear of producing marital strife. As a result, most couples have preferred to veer away from affairs dealing with their property. Unfortunately, this practice has led to discord and conflict as more misunderstandings have arisen between them as they try to deal with the difficulties involved in managing their properties. In order to avoid these situations, resort to legal counsel is strongly advised.