2552 Thailand Supreme Court Opinion (No. 960) 2009
Mrs. Anchada Pooltasthan Plaintiff vs. Mr. Wuttikrai Kiattiwittayakul Joint-Plaintiff
and Mrs. Sutthirak Ponjan Defendant

Civil    Co-owner   Partition of Marital Property (Section 1361 1st paragraph, Section 1533)

During the time of marriage, the Joint-Plaintiff and the Defendant bought the disputed land and town house. While the property was on mortgage installment, both parties registered for divorced. After that, the Joint-Plaintiff sold the disputed property to the Plaintiff, the Joint-Plaintiff’s elder sister and mentioned about the divorce agreement that during the mortgage installment period, the ownership of the property would belong to the Joint-Plaintiff but after the mortgage installment is completed, the ownership of property would transfer to the Defendant. At the back of the divorce certificate, it is attached with Thailand divorce agreement. The Article 2 of the agreement stated that “The 21 square wahs (84 square meters) land and the house number 161/899 locate on Jarunsanitwongse Rd., Bangkunsri Sub-District, Bangkoknoi District, Bangkok, are under mortgage installment with K. company. Once installment is completed, the Joint-Plaintiff would transfer the ownership of the property to the woman party.” The aforesaid agreement of divorce did not mention that the Defendant would give all share of the dispute property to the Joint-Plaintiff; it only mentioned that the Joint-Plaintiff would give his ownership share of the disputed property to the Defendant. There was no settlement on marital property partition. The Civil and Commercial Code, Section 1533 prescribed that “Upon divorce, the marital property shall be divided equally between man and woman.” It meaning is one-half each. Therefore, the Plaintiff or transferee can only acquired the ownership in the same amount or the one-half of the ownership that the Joint-Plaintiff could possess by the law. The Plaintiff has no right to hold the sole ownership upon the disputed property as in the appeal, even though the Plaintiff was acting in good faith in acquiring the property. The Civil and Commercial Code, section 1361 1st paragraph, the law prescribed that “Each co-owner may sell, mortgage or create a charge on his share.” The 2nd paragraph prescribed that “The property itself may be sold, pledged, mortgaged or made a charge only with the consent of all the co-owner.” Therefore, when the Joint-Plaintiff sold the disputed property with no consent from the Defendant, the Sale Contract between the Plaintiff and the Joint-Plaintiff is bind only the amount of ownership that the Joint-Plaintiff possessed. By the effect of the laws, both the Plaintiff and the Defendant shall possess equally ownership on every units of the disputed property. The Plaintiff has no right to evict the Defendant from the disputed property. And, the Defendant has the right to file a complaint to revoking the Sale Contract made between the Plaintiff and the Joint-Plaintiff in the part that regards with her ownership.