If you are married to a Thai and you are going to be buying property in Thailand then having a usufruct is one of the options next to a prenuptial agreement and having a superficies. Since you cannot own property in your own name in Thailand as foreigners are prohibited from owning land outright, this is one way of ensuring that you still have the right to live in the house or villa.
A foreigner in Thailand can own a few Rai in Thailand in his own name only if he invests million in Thailand and also has to get permission from the Minister of Interior for this few Rai of land. Most foreigners would not qualify or be interested in the major investment to own a few Rai in the name. The option is then a usufruct. Many foreigners will buy a house with the land however they have to register the property in the name of their Thai wife. The Land Department will also expect you to state that you have no legal control or interest over the property which is held in the name of your Thai wife.
Usufruct in Thailand
The usufruct gets registered against the title deed of the property and give you the right to use and manage another person’s (your wife’s) immovable property and receive the fruits or benefits thereof. Let’s say you are going to buy a large track of land in Issaan and you are going to leave your wife to farm the land. You are not allowed to farm in Thailand as it is a prohibited profession in Thailand for foreigners. You can’t own the land either however you have a usufruct over the property. Your wife owns the land however you now have a right over the land. In a divorce your wife would still own the land however with the usufruct you still have a right to live on the land. If your wife decides to sell it would be very difficult as nobody will want to buy property with a usufruct registered over it. The usufruct gives you leverage in a divorce but also ensures that you don’t lose your entire investment in the process.
You can register a usufruct for a period of 30 years. Should you died before the 30 years then the usufruct comes to an end with your death. If you and your Thai wife are not going to buy the land but lease the land long term with a usufruct then normally you would place the usufruct in the name of both you and your wife. If one die the other can still make use of the usufruct for the remainder of the 30 year period. The only way to have the usufruct set aside would normally be where the holder of the usufruct does not maintain the property and neglects the property.
Usufructs with expats in Thailand tend to be more of a security in the event of a divorce. If you are not going back to Australia or want to buy property in Thailand in the name of your wife while you start your retirement process in Australia then speak to a lawyer in Bangkok about registering a usufruct for you when you are buying property.