Marriage and property in Thailand, the law for foreigners who find love with a Thai wife
Many western or foreign men with a Thai wife or relationship partner now buy property in Thailand. But what happens if the relationship or marriage goes wrong?
Increasing numbers foreigners or westerners who have become attached to Thailand through a relationships with a Thai wife, girlfriend or partner consider purchasing property in the country. The risks and attraction of property in Thailand has been covered online on this website as more foreigners take interest in the Thai property market. However, once a decision to purchase property in Thailand is taken, it is then time to look at the law in Thailand regarding property and the rights of foreign husbands or relationship partners.
Key suggestions about buying property in Thailand
The key thing to bear in mind is that Thailand has very sophisticated and elaborate legal provisions in relation to the purchase of property that are often quite distinct compared to laws today in western countries. In many cases with foreigners in Thailand, the purchase of property also coincides with involvement in a personal relationship with a Thai national. In most cases, this is with a Thai woman or Thai wife. Therefore it is useful to also study the legal code for marriage in Thailand which is also quite unique by international standards. It is also very sophisticated and elaborate. Thailand’s legal code should command respect from foreigners and this also applies to Thailand’s property ownership structures.
Respect for Thai institutions and the spirit of Thai law
A key element in the thought process for any foreigner considering doing business in Thailand or owning property should be a willingness to have respect for the Thai legal framework and the country’s culture. This is often not the case and can be traced to many of the horror stories involving foreigners in Thailand and property. ‘I know of many of my UK colleagues who have a cavalier and somewhat disdainful attitude towards Thailand, that it is essentially a third world country and utterly corrupt. While there is corruption, it has to be appreciated that Thailand has been a remarkably stable entity with a very sophisticated legal structure underlying a coherent nation which has a very strong sense of identity for longer than most western nations. Thailand has, in fact, been more stable than many European countries in the last one hundred years and has developed socially and economically,’ says James Morris, an internet commentator and international news correspondent in Bangkok.
Thai men and women are very proud of Thailand as a nation
‘Most Thai people at all levels are very proud of the country and are quite nationalistic. This is active not only in Thai law but also in the application of the law. Therefore having respect and consideration is a very good policy to pursue,’ says James Morris. Morris recommends that foreigners in Thailand should not only take advice from reputable lawyers but also insist that their lawyers and professional advisers brief them not only on the application of the law but also the spirit of the law and the bigger picture. ‘I have seen this, it is my own personal opinion, in many situations in Thailand, foreigners will be called upon to take short cuts including instances of bribery or corruption. There are many legal advisers who will even advocate such practices but I think it is wise for any foreigner to adapt the attitude that they want to pursue a course which is consistent with the spirit of Thai law.’ Morris points out that this helps to avoid complications or problems later, when foreigners may find themselves compromised by legal arrangements which are vulnerable if put to the test.
Tips for foreigners buying property in Thailand
- Insist on using an independent and reputable lawyer.
- Insure that all legal arrangements are at arm’s length to personal relationships. ‘I have seen family members of Thai wives become involved in legal transactions and often the foreigner will be advised that he can save money by doing things on a personal basis and this is how the problem starts.’
- Employ the services of a professional to do a property title search on the property. Thailand has, again, a very sophisticated structure with different legal titles applicable to different situations. It might surprise many foreigners to Thailand to note that the Thai legal framework underpinning property is quite innovative and has been studied by countries from around the world as it is very efficient and low cost legal model. ‘This is again, one of the things about Thailand that is quite surprising. The legal provisions for the ownership of land in Thailand are quite sophisticated and therefore if a foreigner is willing to respect Thai law and take the best advice, it is possible to purchase property at a very attractive price and to enjoy the property without any problems.
- A title survey will involve tracking the deeds of the property through various owners in a similar to process to the title searches in western countries but also including checking that the property is free of loans or interests that may be registered as well as confirming that the planning provisions for the site or property are all in order.
- The day you buy is the day you sell: Purchasers of properties in Thailand should also look to the day when they may wish to dispose of the property or pass it on in the event of death, divorce or change of circumstances. All situations should be considered and legal advice take. For instance a lease should be transferable and all housekeeping in relation to the title of the property should be complete and left in perfect order.
Foreigner buying property in Thailand must show source of funds
A key consideration in purchasing property in Thailand is that the foreigner must account for the financial funds involved in the transaction. For a foreigner, the money being brought into Thailand has to be accounted for to the Thai authorities under the various money laundering acts and this also has consequences for foreigners involved in relationships with Thai women. In many instances, this money becomes part of the common property between the married couple unless it can be shown that the money originates from property owned by the foreigner before marriage.
Accurate valuation of Thai property
The purchase price of the property should be in line with current valuations and a failure to do this may lead to a challenge in relation to the transaction in the future as well as tax implications when the property is sold. ‘In nearly every situation this will not happen but in the event of a dispute of any kind, the foreigner should bear in mind that there is greater flexibility in Thai law to challenge transactions that have been made in the past the there would be in western countries.
Taxes on any proposed property purchase in Thailand
One key consideration is that there will be taxes to pay on the sale price of any property including a tax on the leasehold payment made by a foreigner leasing property and this should be considered and calculated before any sale is finalised. In addition, the registration of the property sale, lease or title documents will also incur a fee. ‘I was recently at the land registry office with a friend purchasing a condominium and he had not been advised that there would be a tax to be paid not only on the transaction value but on the rated market value of the property if the transaction value was lower. He also had to pay a registration fee and these costs can be quite significant.’
Paying a deposit on a property purchase in Thailand
It is quite normal for deposits in Thailand to be somewhere between 20-25% ofthe purchase price. Foreigners should also be aware that in nearly all cases, a deposit is non refundable if the sale does not proceed. In relation to the purchase of newly developed property, the contract will similar to western countries involving the payment of the deposits followed by payments at various points of construction and completion.
Legal provisions in relation to a new Thai love partner or Thai wife
For most foreigners coming to Thailand it can be a traumatic experience not only because of the exotic nature of the country but also because of the unique and powerful nature of Thai culture not to mention the allure and attraction of a Thai woman and in many instances one particular woman. Research on ThaiLoveLines, Thailand’s leading dating site, in 2011 showed that a significant proportion of foreigners visiting Thailand formed relationships quite quickly often in the space of two weeks. The survey of 1,500 foreigners who had visited Thailand found that 35% had a formed a relationship within 2 months of their visit while staggering 19% had ended up forming a relationship or marrying a Thai woman that they had met within two weeks.
Whirlwind romance or love in Thailand may lead to sudden legal questions
This raises the question of the legal status and legal provisions of such relationships. ‘For many foreigners it comes as quite a shock to find that they have established a relationship and how it easy it is. It is not uncommon for foreigners visiting Thailand for the first time to get married unofficially in a Buddhist ceremony and later deal with the practicalities of visa issues and indeed where to live,’ says Carla Boonkong, an expert in Thai foreigners relationships. ‘One of the first questions is the legal status of the relationship. The position is that marriage under a Buddhist rite is not a legal marriage and this is so until the marriage has been registered. However to many Thai women, this ceremony is more important than the official marriage. This is difficult for many foreign men to understand, that is because they underestimate the respect and deep meaning of culture in Thailand. To a Thai woman, this is also a matter of respect and face.’
Where to register a marriage if a foreigner finds love in Thailand
This then raises the question of where the marriage should be registered. It is not just a personal choice but it also can impact the visa process of obtaining a visa in the foreign country for the Thai wife or partner. For most western countries except the United States, it is advisable to register the marriage first in Thailand and then have the marriage registration documents translated and authenticated so that the marriage can be later registered in the country of origin of the western man. This is dependent on a successful visa application for which the marriage registration documents are often essential. However with the United States, many visa experts suggest that it is faster and less complicated to obtain a fiance visa for a future marriage partner to travel to America in order to marry as opposed to obtaining a visa for an existing Thai wife.
Foreign or Western men should study marriage and property law in Thailand
For foreigners considering the purchase of property in Thailand, it is worth studying the laws concerning marriage in Thailand as well as Thai property law. It is therefore prudent for foreigners, before they enter into marriage with their Thai wife, to make legal provision. Carla Boonkong, who is a great fan of Thai women and their ability to develop new lives around the world, suggests that it is advisable for any foreigner and Thai woman to have a frank legal agreement drawn up at the outset of the marriage. ‘It might not sound very romantic and it may not be the western thing, but many Thai women will appreciate a practical man and this can be the framework for a good relationship afterwards,’ says M/s Boonkong.
Respect for Thai law is essential for foreigners in Thailand
Again one of the key considerations for any foreigner entering into marriage in Thailand is to have respect for Thai law and Thai culture. The matrimonial laws in Thailand, like its property and other provisions, are quite unique and sophisticated. It may come as a surprise to many foreigners for instance to learn that legally in Thailand, a man can only have one wife despite popular culture and acceptance of minor wives, it is not a legal provision.
Marriage law in Thailand quite fair for Thai nationals
Under Thai matrimonial law there is particular emphasis on property and the provisions are quite unique and remarkably fair as far as marriages between Thai nationals goes. Each spouse retains ownership of their personal property prior to the marriage and there is an acceptance of common property in relation to wealth or property accumulated after the marriage is registered. This personal property is call sin suan chua. In addition to personal property accumulated by any partner to the marriage before it is registered, the law also provides that where any party is the recipient of wealth from a will or a gift, that this property still remains personal and is not part of common property of the marriage. Similarly any wealth or property which is transferred or translated or exchanged still remains personal personal property.
Marriage legal code in Thailand is quite complex
Under the Thai Marriage Act, property which is common to the marriage includes wealth generated during the marriage or property acquired by either spouse during the marriage and also wealth or property generated, which are the fruits of the original personal property. The provisions of the marriage code are sophisticated and therefore complicated, but the rule is that where there is doubt or conflict then the property will be considered to be joint property or common to the marriage.
Foreigners in Thailand should avoid legal conflict
Like most areas in Thailand involving legal provisions, it is advisable for foreigners not only to be respectful of Thai law but also extremely cautious and reluctant to enter into conflict with a Thai national where possible. ‘I know that’s a bit controversial to say, many Thai people take pride that Thai law is fair to foreigners as well as Thais and it would be true to say that where a case arises where a Thai national is blatantly flouting the law, the Thai court will not hesitate to rule in favour of the foreigner, but all things being equal, there is an understanding or expectation that the benefit of doubt will be given to the Thai national, again just a personal opinion,’ says Morris.
Prenuptial agreements are a good idea in Thailand
Carla Boonkong recommends that foreigners and Thai wives enter into prenuptial agreements but stresses that such agreements should be fair and reasonable. ‘I would advise in an ideal situation, that each partner to the marriage would be independently advised but that an agreement should be arrived at that makes provision for every situation and that provision should be fair to both parties. However it is my experience that many foreigners and Thai women do not enter into prenuptial agreements. Often when I suggest this, it is the foreign man who objects. Personally, I think it is a mistake but I have also seen foreigners draft agreements that are high handed and unfair to Thai women. I am quite sure that these agreements will not stand if ever they are challenged.’
Extensive provisions of marriage acts and effects on relationships
Again, it might surprise many foreigners to find that, in Thailand, the marriage code and its provisions are quite extensive. In particular the concept of joint ownership of property is quite developed, making a Thai wife and her foreign husband, in effect, partners in a commercial enterprise who must consult each other on all matters relating to common property and other affairs. The practical implications of the marriage code should be investigated and foreigners should take advice on the implications. This is particularly true for foreigners living with Thai wives in Thailand.
In relation to joint property the provisions include:
Consulting with the other marriage partner in all matters relating to financial transactions which impinge on the joint property including lending money, the sale of property, mortgages etc. The granting of rights over common property This is particularly instructive to foreigners purchasing property in Thailand. It is an accepted way of protecting the foreigners involvement in a property that he cannot own under the restrictive Thai foreign ownership law but where the foreign man has paid for the property and has a beneficial interest. There is the option of creating a right of habitation and other rights over the property and provisions like this should be considered constructively. Lending money: It is quite common in Thai society for people to lend money to each other at all levels even among those with access to bank facilities. This is something that foreigners should be aware of in that the foreigner is responsible for his Thai wife’s actions as the marriage is constituted.
Foreigners excluded from ownership of land
The marriage laws reinforce and specifically exclude foreigners from owning land and property in Thailand except for condominiums under certain conditions. Therefore any property acquired by the foreigner’s Thai wife in the course of the marriage will not be considered to be common property or sin sod and the property laws require the Thai wife to state, at the time of purchase of the property, that the money for the purchase of the property comes from her own personal sources. Similarly, where a Thai wife of a foreign spouse dies, the land held by the wife is considered not to be part of the common property and will become the property of her heirs as part of her estate.
The ongoing success of Thai foreigner relationships is now beyond doubt with the age groups and other demographics involved in such relationships widening to include younger foreign men and Thai women from wealthier and more affluent backgrounds. The Thai marriage code is very strong on property provisions and with the breakdown of traditional marriage in western countries, the legal framework of Thai foreigner relationships as they are evolving could be an example for the future as these relationships prosper.
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