Mixed Marriages and Property Rights
I am a Canadian national male married in Thailand to a Thai
national female. We are interested in purchasing some property both
in Phuket as well as Chiang Mai. Unfortunately we may have already made
a mistake in having my wife change her family name to mine as her married
name. It now appears that the simple act of family name change has had
an impact in her right to own freehold land . While I can understand
that as a foreigner I cannot own freehold land, I have some question
as to the right of my wife to do so. Is my wife no longer considered
a Thai National as a result of her family name change? She still holds
a Thai Passport and ID card.. What are the regulations/law and where
can I obtain a copy?
Have you made a mistake? Yes and No. No, in so far as the Thai Land Office is concerned. Their interpretation of this issue is that a Thai who simply cohabits with, let alone marries, a foreigner looses their right to acquire land. Yes, inasmuch as it would now be obvious to the Land Office, in any attempt to register purchase of land, that your wife is married to a foreign national. It was/is not uncommon for Thai/foreign couples to apply this apparent loophole - and the chances are, that they will get away with it - but, if the matter were to come to light the sale could be rendered invalid
In this respect there is also a common misconception that a Thai man does not loose his right to acquire land when he marries a foreign national. This is not correct, but is possibly perceived as such, because a Thai man marrying a foreigner, retains his Thai name, even if the marriage is locally registered. And whatever their sex, a Thai national of mixed marriage wishing to register acquisition of land would have to (perjure himself or herself) claim that he or she is unmarried, since a married person needs their spouses consent for any transaction relating to land. (This requirement can however be quite a convenience if your spouse has wagered and lost the family holding at the gambling table.)
There are some who claim that the Land Offices regulation is in contradiction with a Thais basic civil rights and is as such not valid.
I am not aware of a public case that challenged this ruling, but I believe that in a few instances where the issue has been raised, that a deal has been quietly done - but most likely to preserve appearances, the recorded purchaser's name will have been a Thai one.
As with the nationality issue of children born in Thailand, which was successfully challenged (and the law amended a few years back) I would expect that eventually a similar change will occur in regard to land ownership rights.
Regarding her nationality, your wife remains a Thai national in all general purposes, but in the interpretation of the Land Office (as with Thai companies that have majority foreign ownership) she is, for the moment at least, divested of her right to acquire land. The basic rational for the directive is an attempt to solve an apparent contradiction between the Land Code - a foreigner may not own land - and the Civil and Commercial Code - which provides that all assets acquired during a marriage will be equally split upon the dissolution of that marriage. The argument therefore runs that because divorce of a mixed marriage, could result in land acquired during the marriage, falling into foreign ownership, that the mixed marriage may not acquire land. Interestingly, though, the reverse is not the case - a Thai person owning land, is not disqualified from marrying a foreign national.
For further information on this subject you should look to three sources of information. The Thai Land Code, and the Thai Civil and Commercial Code - both of which can usually be obtained in translation - and harder to obtain, the numerous directives issued by the Land Office to the various Provincial and District Land Offices.