Thai Family Law is determined by the Civil & Commercial Code which is largely based on the European Civil Law system with some particular influences from the French Civil Law. There are specific provisions with the code that are relative to Family Law matters such as Marriage, Divorce, Parentage, Adoption, Maintenance, Property and Succession.
The procedural protocols of Family Law are applied quite literally as a court judge can not make a ruling which is in conflict with the Civil and Commercial Code of which the main body of Family Laws of Thailand resides within.
At Diamond Russell Lawyers we can assist clients with marriage related issues such a prenuptial and post-nuptial agreements, property usufruct agreements and related property matters.
Both marriage and divorce bring with them attendant legal issues that may also need to be addressed such as wills (both “final wills” and “living wills”) and matters of succession as well as property, parenting, adoption and so forth. For divorce, there could be issues such as alimony and maintenance as well as property settlement matters.
Please feel welcome to contact us to discuss any matters of Family Law with which we could assist you. The initial introductory consultation is free and without any obligation.
A Thai prenuptial agreement is a very simple instrument which allows you to protect any pre-existing financial Thai assets which you have acquired prior to getting married in the unforeseen event that the marriage becomes dissolved. Creating a prenuptial agreement needs to be done prior to the registration of the marriage and signed in the presence of two witnesses. It then needs to be registered at the registry office where the marriage is being registered. This is usually done on the same day as the marriage registration. Moreover, it needs to be noted that both marriage partners should ideally have their own independent legal counsel in relation to the creation of the prenuptial agreement and although this could be considered a formality, it is quite a prudent measure in that it can prevent any future claims that the agreement was biased or unfair on either one of the parties.
Foreigners with overseas assets should consider creating a prenuptial agreement relevant to the laws of the country where the assets are held. If this is the case then a reference to any such foreign prenuptial agreement can be noted in the Thai prenuptial agreement although that isn’t an absolute requirement but it could be worthwhile in preventing any disputes that might arise in relation to foreign assets.
Marriage Contracts (Post-Nuptial Agreements)
A Marriage Contract (Post-Nuptial Agreement) is basically an agreement made between the husband and wife after the marriage has been registered. Please be clear that in the event that a prenuptial agreement has already been made prior to the marriage (i.e. registered on the same day and as part of the marriage registration process), then a post-nuptial agreement made afterwards cannot conflict with anything in the prenuptial agreement. In the event that any prospective conflict was likely, then the matter would need to be dealt with very carefully and with full genuine consent of the parties and with strict adherence to the protocols of the Thai Civil (marriage & family law) Code. If a prenuptial agreement has not been entered into then a post-nuptial agreement can be created provided that it has once again been entered into freely and with full genuine consent of the marital parties. You should consult with your lawyer to consider the purpose and prospective outcomes of entering into such agreements, and it should be noted that both spouses should have their own independent legal counsel acting for them in the creation of any such agreement.
When a married couple decides to separate, it is often arranged casually and via loose verbal agreements. However, if the circumstances of the separation seem serious or if it is considered as a practical arrangement to what might become an inevitable divorce, then it is very prudent and wise to establish a formal separation agreement between the husband and wife which will set out the terms of the separation and any agreed points between the parties. This could include references to financial agreements, living arrangements, child welfare and references to no-contest divorce if filed by either party. The process is quite simple but the structure and contents are very important as they can predetermine outcomes and considerations if the spouses ended up going through with formal divorce proceedings. By going to the effort of creating a separation agreement right from the outset of separation, it can reduce conflict and problematic issues later. A clearly written separation agreement can provide clarity and peace of mind to a couple at a time of change and difficulty. If you would like to talk with a specialist family law legal counsellor further about “Seperation Agreements”, please contact us and we’ll be pleased to help.
For clients seeking legal assistance related to marriage breakdown and divorce, we can assist with preparation of documents for filing for divorce provided that there are adequate legal grounds for divorce which generally includes no-contest divorce (divorce by mutual agreement), abandonment (exceeding 12 months), some criminal acts either against spouse or others, imprisonment sentence to a spouse by the court, or adultery. The process for getting a divorce will largely depend on the circumstances which would need to be discussed with your lawyer in order to determine relevance and practicality.
Property acquisition and ownership between spouses of Thai nationality can be in the name of the husband or the wife but in most cases it is acquired in joint names. The equity of any jointly owned property acquired after marriage is generally considered as common property of the marriage which is jointly shared on a 50/50 basis. There may be property ownership by either spouse prior to marriage in which case a prenuptial agreement would clarify the right to pre-existing ownership but in the absence of a prenuptial agreement then it might be such that the property would fall under the jointly owned “common property” law between the marriage partners.
For foreign spouses, it is not possible for the foreigner to own property (land) in Thailand, with the exception of condominium ownership which is basically a right to legal possession of a residence within a construction built upon land which is owned by a Thai national or a Thai owned company with predominant Thai shareholding. However, there are ways in which a foreigner can enjoy virtual ownership of joint property with the Thai partner by registering a usufruct agreement which gives the foreign spouse the legal right to occupy the land for the duration of the foreigner’s lifetime. Any equity built up in such property (even though registered as being 100% owned by the Thai partner) would be considered as “common property” of the marriage and as such would be divided equally in the event of a property settlement pursuant to a divorce.
Child Custody & Maintenance
In any divorce where children are involved then there needs to be provisions made in relation to their welfare in terms of caring and financial support. Whilst there cannot be any firm precedents that would automatically dictate the custody of children, it largely depends upon the co-operation and joint agreement of the parents, or in the case of their being hostilities and/or communication breakdown, then the court must decide upon the most appropriate orders in relation to custody and will need to take into consideration the ability and suitability of each of the spouses to provide adequate care and welfare which could include practicalities relating to employment (or lack thereof) and also financial capability of the respective parents. This is a very delicate and serious aspect of divorce which need to be very carefully considered and then presented to the court in a definitive manner so as to prove to the court that the correct provisions are applied in relation to custody and maintenance.