The separation of assets in divorce, in Thailand
Upon termination of the marriage, both husband and wife has to divide properties which consist of private property (called "Sin Suan Tua" in Thai) and common property (called "Sin Somros" in Thai).
Section 1470 Properties of husband and wife except in so far as they are set aside as Sin Suan Tua, are Sin Somros. Section 1471 Sin Suan Tua consists of: (1) property belonging to either spouse before marriage; (2) property for personal use, dress or ornament suitable for station in life, or tools necessary for carrying on the profession of either spouse; (3) property acquired by either spouse during marriage through a will or gift; (4) Khongman Section 1472 As regards the Sin Suan Tua, if it has been exchanged to other property, other property has been bought or money has been acquired from selling it, such other property or money shall be Sin Suan Tua. Where the Sin Suan Tua has been totally or partly destroyed but replaced by other property or money, such other property or money shall be Sin Suan Tua.
Section 1474 Sin Somros consists of (1) property acquired during 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 Sin Somros; (3) fruits of Sin Suan Tua.In case of doubt as to whether a property is Sin Somros or not it shall be presumed to be Sin Somros. The rule,regarding division of property, are Sin Suan Tua remains the property of the owner and Sin Somros shall divide equally. Section 1533 Upon divorce, the Sin Somros shall be divided equally between man and woman. In some cases it might not divide equally if one spouse disposed Sin Somros as following;
- For his or her exclusive benefit,example; One spouse sells Sin Somros and retains all the money by himself/herself or use it in their own interests..
- One spouse has made a disposal with an intention to cause injury to the other. Example; One spouse sells Sin Somros to his or her own relative for very low price.
- One spouse has made disposal without the consent of the other. Example; Sin Somros is the land namely sole husband and later husband sells it without consent of wife.
- One spouse has willfully destroyed it. Example; Wife is angry with husband and then sells her Sin Somros.
In order to divide such a Sin Somros, it shall be deemed that all properties are in full and complete. If the share of the Sin Somros that the other will receive is not complete to what he or she should have received, the party at fault is required to make up for the arrears from his/her own share of the Sin Somros or his/her Sin Suan Tua. The calculation of period of marriage, regarding to dividen property, are as follows;
- If it’s uncontested divorce, it shall be divided for what assets they owned while registering divorce.
- In case of divorce by judgment of the Court, it shall be divided for what assets they owned on filing petition date.
Section 1532 After divorce, the property of the husband and wife shall be subject to liquidation.
But as between the spouses, (a) in case of divorce by mutual consent, the liquidation shall apply to the property of the husband and wife as it was on the date of registration of divorce; (b) in case of divorce by judgment, the liquidation shall apply to the property of the husband and wife as it was on the day when the action for divorce was entered in Court.
Marriage with a Foreigner. In case that husband and wife have different nationalities, the assets of wife shall be governed by the law of the husband’s nationality except property according to Conflict of Law ,section 22 designate that if there is no prenuptial agreement, the relationship between husband and wife shall be governed by nationality law.If husband and wife have different nationalities, all common property shall governed by the law of husband’s nationality.However, the immovable property shall comply with the law where the property is situated; such as house and land. For example; Thai wife has a dispute over the land with a foreign husband, Thai law shall govern. In case of termination of marriage by divorce, Thai law designates that assets shall be divided equally.