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Personal Property and Marital Property

Last updated: 26 Sep 2023
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Personal Property and Marital Property

Personal Property
According to Section 1471 of Thailand’s Civil and Commercial Code, which governs matters related to family, personal property is defined as follows:

1. Property that is owned by either spouse prior to their marriage.
Assets obtained or owned prior to marriage are considered the individual property of the spouse who acquired them, and they will continue to maintain ownership of such assets during and after the marriage ends. For example, if a husband owned a car before registering his marriage, it is considered his personal property, and he will retain sole ownership of it.

2. Personal effects, clothing, or ornament appropriate for the status of either spouse or tools necessary for their professions
Personal effects are defined as items used solely by the owner and not shared with others, such as bedding, watches, or eyeglasses. Clothing and ornaments refer to items such as shirts, pants, belts, hats, earrings, bracelets, and rings, but it is important to note that they must be appropriate for the status of the spouse. If such items are deemed to be excessively expensive compared to the financial capacity of the couple, they may be considered marital property. Tools required for the profession of either spouse, such as musical instruments owned by a husband who is a musician, are considered the sole property of that spouse. These properties are recognized as separate properties regardless of whether they were obtained after the marriage or purchased using the marital property.

3. Property acquired by either spouse during marriage through inheritance or gift
If a spouse acquires any assets or property during marriage through inheritance, whether as a statutory heir or a beneficiary named in a will, such assets are considered personal property of the acquiring spouse. The same applies to gifts received by either spouse, which are specifically intended for them and without any consideration. Such gifts are the sole property of the receiving spouse. This principle also applies when a spouse gives a gift to the other spouse, which will be deemed the separate property of the recipient, even during the marriage.

4. Engagement gifts
 An engagement gift, also known as a betrothal gift, is a gift given by a male partner to the female partner on the day of engagement as evidence of his commitment to marry her. As such, only the male partner can give an engagement gift to the female partner. Once an engagement gift is given to the female partner, it automatically becomes her property. Since an engagement takes place before the actual marriage, any engagement gift given will always be considered the personal property of the female spouse, as it was acquired before the marriage was registered. For example, if a male partner gives a diamond ring to his female partner on the day of their engagement, the ring immediately becomes the personal property of the female partner.

It is important to note that personal property owned by a spouse can be replaced or exchanged for other property without affecting its separate ownership, even if the replacement or exchange occurs during the marriage. For instance, if one spouse bought a car using their own premarital funds and later sold it to purchase a new one during the marriage, the new car would still be considered personal property and remain solely owned by that spouse.

A spouse who owns personal property has complete autonomy over it. They have the freedom to manage and dispose of the property as they see fit, whether it be through selling, mortgaging, or gifting it to someone else.

Marital Property
Under Section 1474, marital property refers to the following properties:
1. Property acquired during marriage
In order for a marriage to be legally recognized, the couple must register their marriage at a relevant district office. Simply cohabiting as husband and wife does not constitute a legal marriage. As a result, any property acquired during cohabitation without registering a marriage will not be considered marital property but rather joint ownership under property law, which is governed differently from family law.

Any property acquired during the course of a marriage that does not qualify as personal property is considered marital property and is jointly owned by both spouses, regardless of who earned or acquired it. This includes income earned by one spouse while working abroad, salary earned by the other spouse from their job, and pensions earned by either spouse. If the couple separates but has not legally divorced, any assets or income acquired by either spouse during the separation period will still be considered marital property until a divorce is registered.

A property acquired during the marriage is considered marital property regardless of whether only one spouse is listed as the owner in the title document. For instance, if a husband and wife purchase a plot of land and agree that only the wife’s name will be on the title deed, the land is still considered marital property. Similarly, if the property is registered in the name of a third party, it is still considered marital property as long as it was acquired during the marriage.

2. Property acquired by either spouse during marriage through a will or gift made in writing if it is declared by such will or document of gift to be marital property
While property acquired through inheritance or gift is typically considered personal property, there are some exceptions. If a will or gift document explicitly declares that the property is marital property, then it will be classified as such. However, it is important to note that this agreement must be in writing - a verbal agreement will not be sufficient, and the property will remain personal property. 

3. Fruits of Personal property
Under Thai law, fruits of property refer to both natural and legal fruits. Natural fruits include not only the produce from trees but also the offspring of animals. Legal fruits, on the other hand, are the benefits derived from the property. Normally, under property law, the fruits of the property belong to the owner. However, in Thai family law, fruits of personal property are classified as marital property, which means they are jointly owned by the spouses. If, for example, the husband owns a building as personal property, having acquired it before marriage, and then leases it out after marriage, the rental income derived from the building will be classified as marital property.

Management Of Marital Property
When it comes to marital property, significant decisions regarding it must have the consent of both spouses. There are several legal actions related to marital property that require mutual consent or joint management, including:

• Sale, exchange, and mortgage of immovable property
• Leasing out of immovable property for more than 3 years
• Lending money
• Gifting, except for charitable, social, or moral purposes that are appropriate to the family’s situation.
• Settlements
• Putting up the property as collateral or security with a competent official or the Court.

The reason why consent is required for these legal acts involving marital property is to protect against the possibility of losing or disposing of the property. The law aims to safeguard the interests of both spouses by requiring them to consult with each other before making important decisions that may affect their property. Without the consent of the other spouse, any such legal action is not binding for the spouse who did not give consent. For example, if one spouse sells a marital house to a third party without the other spouse’s consent, the latter can revoke the sale contract. If not revoked, the sale remains valid. However, the non-consenting spouse can later ratify or approve the legal act, which would make it permanently binding and irrevocable.

If the marital property has already been transferred to a third party without the consent of one spouse, the situation becomes more complex. For instance, if the wife sells marital property (which is immovable property, e.g., land, house, or building) to a third party without the husband’s consent, the sale cannot be revoked if the third party was not aware at the time of purchase that the property was marital property or was under the mistaken belief that the husband had given consent.

What Happens When the Marriage is Terminated
A marriage can be terminated in three ways: death of either spouse, divorce, or court judgment revoking the marriage. Once the marriage is terminated, assets acquired afterward will become separate or personal property of each spouse.

As for the existing marital property, both spouses are entitled to an equal share, Nonetheless, the former partners can mutually agree to a different arrangement, such as one spouse receiving the car and the other receiving the house, or alternatively transferring the marital assets to their children.

As marriage and property matters are sensitive and complex, it is advised to learn about the family law that applies to your situation or seek legal counsel.

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