Thailand Intrigue

Divorce in Thailand

By Joe Lynch, Accredited Australian Family Law Specialist

Lanna Lawyers, Chiang Mai, Thailand

There are three ways in which a marriage can be terminated under Thai law. According to section 1501 of the Commercial and Civil Code of Thailand (CCCT) they are;

- Death

- Divorce

- Cancellation by the Court

Death

Death brings a marriage to an end.

Cancellation by the Court

Cancellation by the Court is rare. It normally has a retroactive effect as a decree of nullity of marriage in other jurisdictions. Such an order takes effect as if the marriage never happened. In these rare cases one spouse may, for example, assert that he or she would never have married this person if she had known certain facts, or that the marriage is void because of the manner in which was undertaken for example if one of the parties was under the legal age)..

Divorce

Under Thai law there is no distinction between foreigners and Thai nationals. If a marriage is recognized under Thai law and there is a jurisdictional basis for an application to the court then the Thai courts will entertain applications in respect of marriages between two Thai nationals or between a foreigner and a Thai national. First, we must say that under Thai law, there are no differences between Foreigners and Thais. There are two ways in which a divorce can be affected under Thai law as set out below.

Uncontested Divorces

By Mutual Consent: If you were married in Thailand at a local Registry office (Khet or Amphoe) or overseas you may register an administrative divorce in Thailand. Divorce in Thailand by mutual consent must be made in writing and witnessed by at least two persons. You will need to show your marriage certificate, passport and the national I.D. card of the Thai citizen. The process can be completed in one day at the local Registry Office. This type of divorce is possible only if the couple has no disagreements over such issues as children or property. A Thai divorce certificate will be issued by the registry Office.

If the parties to a marriage wish to terminate their marriage than they may do so without any reason because marriage is regarded as civil contract. Therefore, by consent, the parties can vary or cancel the contract between them. If both parties agree to terminate the marriage (or contract) they may do so but will have to follow the prescribed procedure. Many civil law countries accept these uncontested divorces. On the other hand, law countries such as the United States, England and Australia specify a ground all grounds for divorce and require the divorce to be undertaken by way of court order.

Under section 1514 of the Thai Civil and Commercial Code divorce may be affected by mutual consent made in writing and certified by two witnesses. A divorce agreement can be made at the District Office or indeed anywhere. There is no formal requirement as to the format of the agreement but what is important is that both parties understand and agree to the divorce. In the case of a marriage between a Thai national and a foreigner it is important that a bilingual agreement be used which must be witnessed by two witnesses who must witness the signatures of the divorcing couple and sign their names in the presence of the couple and in the presence of each other. In Supreme Court case in Supreme Court case number 215/2519 in the matter of Pomasa v Pomasa a divorce agreement was witnessed by two witnesses but was not subsequently registered at the district office. The court therefore determined that the divorce had not taken effect. In another case of Tansirimongkol v Tansirimongkol the divorce agreement was witnessed by only one person and the Supreme Court held in case number 1639/2522 that the divorce had not been effected.)

Where there is a divorce by mutual consent it must be registered at the district office in order to take effect. After endorsing the consent on the divorce agreement in the presence of two witnesses the divorcing couple then need to register their divorce at the district office in accordance with section 1515 of the code. In a Supreme Court case of Sae-ton v

Sae-jiew number 1291/25 double oh the divorce was not registered at the district office by one of the parties and the divorce was held not to have taken effect.

The parties will need to show their marriage certificate, passport and the national I.D. card of the Thai citizen. The process can be completed in only one day at the local Register Office. This type of divorce is possible only if the couple has no disagreements over such issues as children or property. The parties should include all aspects of their agreement in the divorce agreement. For example, if the parties are able to reach agreement on parenting issues, child custody, maintenance and division of property between them to these matters should all be included in the agreement and registered at the district office the district officer will note the divorce agreement including agreement reached on financial aspects and in relation to the arrangements for the children

Contested Divorces

If both parties cannot agree to the divorce then one party needs to file a petition with the Court. In order to do so the party filing the petition must have grounds for divorce and will bear the burden of proof in establishing that ground.

Either the plaintiff or defendant (or both) must be a resident of Thailand. There are 12 grounds for divorce under Thai law. We strongly suggest that you consult a legal professional in these matters. If you are overseas, you may appoint a lawyer to initiate the procedure on your behalf. However, once a court date is set, you must appear in court in Thailand. Any documents not in Thai will need to be translated and notarised by your embassy in Bangkok. Divorce certificates are usually obtained from the court where the divorce was granted.

Grounds for Divorce in Thailand

The grounds for divorce in Thailand are as follows:

a 3-year period of separation
One spouse has deserted the other for over one year
The husband has taken another woman as his wife
The wife has committed adultery
One spouse is guilty of misconduct (criminal or otherwise)
One spouse has physically or mentally harmed the other
Lack of maintenance and support
One spouse had been imprisoned for more than one year causing the other party excessive injury or trouble
One spouse has had incurable insanity for at least 3 years
One spouse has broken the bond of good behaviour
One spouse has an incurable, communicable and dangerous disease
One spouse has a physical disadvantage so as to be unable to cohabit as husband and wife.

The grounds for divorce are set out in more detail in section 1516 of the Code. Section 1516 provides:

“Grounds of action for divorce are as follows:

(1) The husband has given maintenance to or honoured such other woman as his wife, or the wife has committed adultery, the other spouse may enter a claim for divorce;

(2) One spouse is guilty of misconduct, notwithstanding whether such misconduct is a criminal offence or not, if it causes the other:

(a) To be seriously ashamed;

(b) To be insulted of hated or account of continuance of being husband or wife of the spouse having committed the misconduct;

(c) To be insulted of hated or account of continuance of being husband or wife of the spouse having committed the misconduct;

(d) To sustain excessive injury or trouble where the condition, position and cohabitation as husband and wife are taken into consideration; the latter may enter a claim for divorce;

(3) One spouse has caused serious harm or torture to the body or mind of the other, or has seriously insulted the other or his or her ascendants; the latter may enter a claim for divorce;

(4) One spouse has deserted the other for more than one year; the latter may enter a claim for divorce;

(4/1) One spouse had been sentenced by a final judgment of the court and has been imprisoned for more than one year in the offence committed without any participation, consent or in the knowledge of the other, and the cohabitation as husband and wife will cause the other party sustain excessive injury or trouble, the latter may enter a claim for divorce;

(4/2) The husband and wife voluntarily live separately because of being unable to cohabit peacefully for more than three years, or live separately for more than three years by the order of the court; either spouse may enter a claim for divorce;

(5) One spouse has been adjudged to have disappeared, or as left his or her domicile or residence for more than three years and being uncertain whether he or she is living or dead;

(6) One spouse has failed to give proper maintenance and support to the other, or committed acts seriously adverse to the relationship of husband and wife to such an extent that the other has been in excessive trouble where the condition, position and cohabitation as husband and wife are taking into consideration, the latter may enter a claim for divorce;

(7) One spouse has been an insane person for more than three years continuously and such insanity is hardly curable so that the continuance of marriage cannot be expected, the other may enter a claim for divorce;

(8) One spouse has broken a bond of good behaviour executed by him or her, the other spouse may enter a claim for divorce;

(9) One spouse is suffering from a communicable and dangerous disease which is incurable and may cause injury to the other, the latter may file a claim for divorce;

(10) One spouse has a physical disadvantage so as to be permanently unable to cohabit as husband and wife; the other may enter a claim for divorce.”

In order to seek a divorce order and orders for ancillary relief property settlement or parenting orders it is to file a petition in the Court and if a claim is made for property settlement a deposit must be paid to the court. This is normally 2% of the value of the amount claimed. For example, if a home had been purchased during marriage and this was part of the “common property” (Sin Somros) having a value of 2 million baht, the petitioner is entitled to claim 1 million baht. So, an amount of 20,000 baht is required to be paid as deposit to the Court. If the case is one, the judge can order the other party to pay back this deposit. The case involves children this issue is usually dealt with by the juvenile court first. That court will usually order a report relating to the children that will be made to the court by a counsellor. Then, on the first appearance, will normally ordered mediation. If the defendant does not appear, the only evidence considered will be the one of the plaintiff. If the plaintiff does not know where the other party leaves or is located where a party lives or is located and expats a divorce may be granted in certain circumstances. If the matter proceeds to trial, the plaintiff must be present and has the burden of proof.

The waiting time for a petition to be listed for hearing is between 3 months to 1 year. This excludes appeals and special circumstances. These time estimates are approximate only. Divorces are heard in the Family Court division.

Foreign marriages

If parties were married outside of Thailand, they can only divorce according to the laws of the country concerned. It is possible to file for divorce in Thailand but only under certain circumstances where the laws in the country of marriage are not in conflict with the law in Thailand in respect of residency and the grounds for divorce.

The Conflict of Law Act B.E.year 2481 enacts the following clauses about divorces:

Section 26. Divorce by mutual consent shall be valid if it is permitted by the respective law of nationality of both the husband and the wife.

Section 27. Divorce cannot be granted by a Thai Court unless it is permitted by the respective law of nationality of each spouse. The grounds for divorce are governed by the law of the place where the action is instituted.

In Supreme Court in decision s.5887/2533, one party was Thai and other party was Indian. The Court stated that “A mutual consent divorce between plaintiff and defendant shall be valid between two of them only. It cannot be set up against third persons acting in good faith and operates only between the parties who registered their divorce according to section 1515 of Civil and Commercial Code”

Spouses who registered their marriage under foreign law can divorce by court order in Thailand. If one party sees that there is one of the grounds for divorce according to section 1516 of the Commercial and Civil Code. Each spouse has to be present at the embassy of spouse’s domicile. Each spouse must declare his/her intention to divorce by written document concerning both property and child arrangements. Both parties have to sign it the presence of the registrar and 2 witnesses. In the event that one party cannot be present at the same time, they can agree on which party should submit the divorce first and the other party can submit later. Divorces made abroad can be registered at a district office in Thailand.

Recognition of a Thai divorce abroad

The laws in every country are different and can change frequently. You should verify if a Thai divorce is recognised in your country with your embassy or a foreign lawyer from your own country.

For example, under Australian law a Thai court has jurisdiction to grant a divorce and a divorce order will be recognised under Australian law.