Contested divorce in Thailand Influenced by a Prenuptial Agreement

If the parties in a divorce in Thailand cannot agree on the terms of the ending of the marriage, the separation could end up being contested and matters relating to the separation and ending of the marriage will be decided by the court.

If the parties have made a prenuptial agreement the courts in Thailand will recognize a prenuptial as a valid document if made before the marriage and entered in the government marriage registers.

The question is how will a court deal with the content of a prenuptial agreement made in Thailand when it comes to the division of marital assets.

Prenuptial agreement content

A prenuptial agreement in Thailand can only deal with assets and debts and the content of the prenuptial cannot be against the law or good morals, nor can the relations between husband and wife as regards to marital assets be governed by foreign law.

The criterion in the law ‘against the law or good morals‘ gives little flexibility in drafting a prenuptial agreement in Thailand. Any terms in the prenuptial agreement against the statutory legal system of property between husband and wife will quickly be set aside by a court in Thailand as against public policy or good morals and therefore null and void (section 1465 Thailand Civil Code).

A prenuptial in Thailand deals primarily with:

1. management over marital property, as specified in section 1476 Civil Code, during marriage, and;
2. details of each party’s assets brought into the marriage and how to deal with these assets, rather than that it is possible to create a private property system or division of property in a prenuptial agreement that differs from the statutory marital system of law.

What does that mean in a divorce?

If the divorce is based on mutual consent the parties can to the any local government municipality and apply jointly for divorce if there is agreement on the terms of the divorce. If the parties have made a prenuptial agreement before the marriage this could have helped as a divorce guideline between husband and wife on how to divide the properties.

If the divorce is contested the prenuptial is recognized however the terms of the prenuptial agreement will be scrutinized by the court and what you have agreed in the prenuptial agreement could turn out not to be enforceable in a court and null and void.

Not many Thai nationals do prenuptial agreements and lawyers in Thailand are generally not used to deal with prenuptial agreements. It is more common for foreigners in Thailand to request a prenuptial, but also more complicated as the laws regarding marriage and prenuptial agreements change depending where you are in the world. A Thai prenuptial with a choice of law for Thai laws could be a smart choice for a foreigner, or it may not. It is important to consider the laws of both Thailand and the laws of the foreigner’s nationality. Legal advice should be obtained from both a legal professional qualified under Thai and as well as from a professional qualified under the laws of the foreign nationality.  

Some law firms in Thailand use, because of the unfamiliarity with this type of contract, a standard free English language prenuptial agreement form downloaded from the Internet and translate this to Thai instead of drafting a typical prenuptial that complies with Thai law and is enforceable in a Thai court. A free prenuptial template holds little weight in Thailand, this while it is possible to download for a relative small amount a professional specific Thai English prenuptial agreement template.

About the Author:
Tiwi writes legal articles for Thailand Law Online and Thai property laws and legal subject for expats in Thailand
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