Right of Habitation
If you are getting divorced while in Thailand, then the right of habitation does come to the fore. You will need to speak to divorce lawyer in Thailand about this as it can become very complex. Do you have a usufruct registered over the property and also is there a superficies in play on the property? These all need to be considered.
The right of habitation is covered in Thai law under Section 1402. The law makes it clear in the Thai Civil and Commercial Code with Section 1402 as well as Section 1403:
Section 1402. A person who has been granted a right of habitation (arsai) in a building is entitled to occupy such building as a dwelling place without paying rent.
Section 1403. A right of habitation may be created either for a period of time or for the life of the grantee.
If no time has been fixed, such right may be terminated at any time by giving reasonable notice to the grantee.
If it is granted for a period of time, the period may not exceed thirty years; if a longer period is stipulated, it shall be reduced to thirty years. The grant may be renewed for a period not exceeding thirty years from the time of renewal.
As stated that during a divorce in Thailand this is normally where this rights comes to play. It could be you or your then ex-wife. You will also note that the right of habitation excludes rent. The person with this right does not need to pay any rental income. You might also want to look at the usufruct and how this is also a right of habitation but is applied for when buying the property so that it may be registered against the property title deed in Thailand.
Section 1404. The right of habitation is not transferable even by way of inheritance.
Your right of habitation cannot be inherited whereas a superficies can be inherited. This is a major difference and you always consult a property lawyer about this. Much like a usufruct the owner of the property does not need to maintain the property and the person who holds the right of habitation can collect the fruits of the property.
Section 1407. The grantor is not bound to maintain the property in a good state of repair.
The right of habitation has the same use as the usufruct that you might have registered over the property. During a divorce the courts will enforce this however not many expats make use of a usufruct and this has always had disastrous consequences as many are pensioners who had the inability to recover from such a major loss. Always plan ahead as there is no turning around when in Thailand when disaster strikes.