Many couples can decide to divorce but get stuck on the house that is still being paid off to a bank. Whose name is on the deed, who signed the loan, where the down payment came from, and what the bank will say once the spouses have agreed between themselves. This guide covers only the mortgaged house. For the whole divorce, the division of all marital property and custody, see the divorce, custody and property guide. If one spouse is a foreigner, also read the guide to divorce with a foreign spouse.
The Short Answer
Between spouses, the name on the deed is not the final answer. You must ask whether the house is personal or marital property and where the money for the purchase and instalments came from. Toward the bank, the name on the loan contract is the answer, and the spouses' agreement does not bind the bank. The two questions run on separate tracks and both must be dealt with.
The law (Civil and Commercial Code). Section 1471 defines personal property, for example property owned before marriage, property for personal use or a profession, and property acquired by inheritance or gift where stated to be personal. Section 1472 deals with substitution: property acquired with, or in exchange for, personal property may remain personal property. Section 1474 defines marital property, for example property acquired by a spouse during the marriage, and property acquired by will or gift where stated to be marital. On divorce, Section 1533 divides marital property in equal shares, and Section 1534 covers marital property disposed of by one spouse for their own benefit alone, which is counted as that spouse's share. On debts, Sections 1489 and 1490 separate joint debts from personal debts, and Section 1535 sets the rule for who bears joint debts when the marriage ends.
Our practical view. The real problem is rarely the text of the statute, it is evidence: who transferred the down payment, which account paid the instalments, and who is named on the loan. We advise collecting these documents before negotiating, and writing the agreement to cover both ownership and the debt to the bank.
Hypothetical. Nipa and Teeraphon registered their marriage in Khon Kaen eight years ago. Two years after the wedding they bought a house for 3,200,000 baht. The deed is in Teeraphon's name only. The down payment of 400,000 baht came from Nipa's savings from before the marriage, and the rest was borrowed from a bank with both as co-borrowers. The instalment of 14,500 baht a month is paid from Teeraphon's account. They are now divorcing and Nipa will continue to live in the house with Phum, their 9-year-old son.
1. The Deed Is in One Name: Whose House Is It?
A deed in Teeraphon's name alone does not mean Nipa has no share. A house bought during the marriage with money earned during the marriage is likely to be marital property under Section 1474, divided in equal shares on divorce under Section 1533. Conversely, a house bought before the marriage, received by inheritance or a gift stated to be personal, or bought purely with personal money may be the personal property of the named owner.
The person who claims the property is personal usually has to show where it came from. If the documents are unclear, the court looks at all the facts. We would never promise a result in advance.
A rough guide to classification:
| Source of money and property | Likely classification | Evidence to have |
|---|---|---|
| House bought before marriage with one spouse's money | That spouse's personal property (Section 1471) | Sale contract, purchase date, transfer slips |
| Bought during marriage with both spouses' income | Marital property (Section 1474) | Loan contract, transfer slips, account statements |
| Bought during marriage, but the down payment was one spouse's personal money | Case by case, part may be personal (Section 1472) | Proof the down payment came from a personal account and when it was transferred |
| Parents gave money to one spouse to buy the house | Depends on to whom it was given and how it was described | Gift letter, messages, transfer slips |
2. The Bank Is Not a Party to the Spouses' Agreement
A divorce agreement saying "Teeraphon will keep paying" binds only the two spouses. The bank still holds the original loan contract. Every co-borrower stays liable to the bank for the debt as the contract provides, until the bank agrees to release a co-borrower or a new loan pays off the old one. If the spouse who took over the payments defaults, the bank can pursue the co-borrower, and the credit record suffers for both. What the divorce agreement gives you is a claim against the other spouse to bear or reimburse the debt as between the two of you.
On debts incurred during marriage, Section 1490 lists which debts count as joint, and Section 1535 sets the principle for bearing joint debts when the marriage ends. Check the current text before relying on it in a draft, and do not assume that splitting the property fifty-fifty also splits the debt owed to the bank.
3. Options for a House Still Under Mortgage
| Option | Pros | Risks | Documents needed |
|---|---|---|---|
| One spouse keeps the house and refinances | The old loan is closed and the other spouse is clearly released | The bank must approve on one income and may refuse | Divorce agreement or memorandum, income documents, deed, existing loan contract, the bank's consent letter |
| Sell and split the proceeds | One payoff of the debt, proceeds split in the agreed proportion | The market price may be below the debt, waiting for the mortgage to be discharged, finding new housing | Divorce agreement setting the proportions, the bank's payoff statement, sale contract, deed |
| Keep co-owning for a period, for example until the child finishes school | The child keeps a stable home and no immediate refinancing is needed | Co-borrowers remain bound to the bank, you must agree who pays and when co-ownership ends, disputes may arise later | Divorce agreement setting the period, who pays, who repairs, and the conditions for sale or refinancing |
| Transfer at the land office with the bank's consent | The house is in the name of the spouse who stays, as agreed | The bank may refuse if the co-borrower is not released, taxes and fees as set by the authorities | Divorce agreement, the bank's consent letter, deed, ID cards and house registrations of both spouses, marriage and divorce registrations |
When there is a child, co-owning for a period sounds kind, but it must be written clearly or it becomes a new dispute. Read the guide to maintenance and custody to keep child support separate from the house.
4. The Down Payment and Instalments Paid After Separation
Down payment from pre-marriage savings. If Nipa can prove that the 400,000 baht was personal property (for example a pre-marriage account, transferred directly to the seller), she has grounds to raise the substitution principle in Section 1472 and ask that this portion be taken into account before dividing. If the money was mixed with marital money, proof becomes harder.
Down payment given by parents. It matters to whom the parents gave it, whether it was to one child only or to both, and what messages or documents exist. A gift stated to be personal carries more weight. If the parents lent the money, treat it as a debt and ask whether it is a joint debt.
Instalments after separation. A spouse who pays alone should keep the transfer slips and state in the agreement whether those payments count as an adjustment. A right to claim back half is not automatic. It depends on the agreement, the benefit the other spouse had from living in the house, and the facts.
If you suspect the other spouse has moved money or assets out before the divorce, read the guide on a spouse moving money and transferring assets before divorce. Do not access the other spouse's accounts or phone without permission, because that may be unlawful. Seek information through negotiation or court process.
5. Transfer at the Land Office Under a Divorce Agreement
In general, the steps begin with a written divorce agreement and the divorce registration at the district office (or a court judgment or consent judgment). Then both spouses go to the land office where the property is located, with the deed, identity documents, marriage and divorce registrations, and the agreement dealing with the property. If the house is mortgaged, the officer checks the mortgage contract and usually asks for the mortgagee bank's consent letter. The type of registration and the taxes depend on the facts. Ask the land office and the Revenue Department before fixing a transfer date, and do not fix the date until the bank has replied in writing.
If the house was bought in the name of a Thai spouse by a foreign spouse, also read the guide to buying a house or land in a spouse's or child's name and the guide to usufruct for a foreign spouse.
6. Sample Clause for the Divorce Agreement (Adapt)
Clause ... The house and land under title deed no. ........, Tambon ........, Amphoe ........, Khon Kaen Province,
is currently mortgaged to ........ Bank under loan contract no. ........, with an outstanding balance as of ........ of about ........ baht.
1. Both spouses agree that ........ (Party A) will live in the house and pay the loan to the bank,
starting from ........ . Party A will pay on time and give Party B proof of payment every quarter.
2. Party A will apply to refinance or to have Party B released from the loan contract within ........ months,
and Party B will cooperate by signing the necessary documents.
3. If the bank does not approve within that period, the house will be sold and the proceeds, after the bank's payoff amount,
divided in the proportion ........ : ........ .
4. Party A acknowledges that if a default forces Party B to pay the bank, Party A will reimburse Party B with legal interest.
This clause does not bind the bank. The co-borrowers remain liable to the bank under the loan contract until the bank releases them in writing.
5. The down payment of ........ baht that came from ........ shall be treated as ........ (returned before division / not returned).
6. Once the bank consents in writing, both parties will register the transfer at the land office within ........ days.
Fees and taxes (if any) as required by law shall be paid by ........ .
This is a template. Adapt it to your facts and have a lawyer review it before signing.
7. Common Mistakes
- Believing that moving the deed into one name releases the other from the bank, when they are still a co-borrower.
- Writing "keeps paying" without a refinancing deadline or a consequence for default.
- Not keeping the down payment and instalment transfer slips.
- Letting the other spouse stay only by word of mouth, with no document. With a child this breeds even more disputes.
- Using the child as leverage over the house, or moving the child away without telling the other parent. Do not do this, it can count against you in court.
Checklist Before You Agree on the House
Documents about the house and bank
- Copy of the title deed and the sale contract
- Loan contract, mortgage contract and the list of borrowers and co-borrowers
- Bank statement of the outstanding balance and the payoff amount
- Instalment history and transfer slips
Source of the money
- Transfer slips for the down payment and the source account
- Proof of money from parents, and any message saying to whom it was given or whether it was a loan
- Marriage registration and the purchase date
Decisions
- Choose the option (refinance, sell, co-own, or transfer) and set dates
- Ask the bank in writing whether it consents and on what conditions
- Write the divorce agreement to cover the house, the debt and reimbursement, then have a lawyer review it
Further Reading
- Divorce, dividing marital property and child custody — the overall divorce and property picture
- Buying a house or land in a Thai spouse's or child's name — when the name on the deed differs from who paid
- Child maintenance and custody — keeping child issues separate from the house
- Divorce with a foreign spouse — where one spouse is not Thai
- Usufruct for a foreign spouse — an option when a foreigner cannot own land
- What to agree in a prenuptial agreement — preventing property disputes in advance
- A spouse moving money and transferring assets before divorce — when you suspect assets are disappearing
The deed shows the owner on the register, between spouses the source of the money decides, and toward the bank only a written release or a refinancing frees you from the debt.
We help spouses negotiate and draft divorce agreements on the house and loan, and coordinate the transfer at the land office. For an initial consultation, call +66 92 254 2045 or send us the details. See also our family law practice.
This guide is published by Suwanvara Law Firm — a Khon Kaen law firm established in 1986. General information only, not legal advice on a specific matter.
