Domestic Violence Laws in Thailand

Domestic violence is not only a crime, but a serious social problem that should be adequately addressed by normal civil and criminal laws. The criminal law only allows for the imprisonment or punishment of the offending parent for assault without any consideration for the effects to the family. In addition, the civil law is often useless in a case involving domestic violence committed by a parent. In 2007 (2550) the Thai government passed the Domestic Violence Victim Protection Act which not only protects the victims of domestic violence, but also seeks to punish and reform the offenders. The law allows applications to be made directly to the Court in cases involving domestic violence. The Court is able to make orders that specifically address to the individual facts of each particular case.

Under the Domestic Violence Victim Protection Act  any person who commits an act of domestic violence is said to commit an offence of domestic violence and shall thereby be liable to imprisonment for not more than six months, or a fine of not exceeding six thousand baht or both.

"Domestic violence" means any act done with the intention to or in the manner likely to cause harm to the body, mind or health of a family member or to exert coercion or immoral influence over a family member in order to wrongfully cause him to do, not to do or yield to any act, but not including an act done negligently.

"Family member" means a spouse, a former spouse, a person cohabiting or having cohabited with another husband and wife without civil marriage, a child, an adopted child, a member of a household, as well as any person counting on and living in a family.

An offence under the Act is compoundable which means an offender may also be charged with any relevant offence under the Criminal Code or other laws. For example, should the domestic violence also constitute an offence of causing bodily harm pursuant to section 295 of the Criminal Code the offender may also be charged with that offence.

If the Court finds the offender to be guilty of committing domestic violence, instead of punishing the offender, the Court may “apply certain measures of reformation, treatment or correction to him, may direct him to pay an amount of relief money, carry out community service or refrain from the acts giving rise to domestic violence, or may place him under a peace bond, subject to the procedure and period of time determined by the court.”

"Court" means the Thai Juvenile and Family Court.

"Relief money" means preliminary compensation for the loss of any money or property incurred by a domestic violence victim in consequence of domestic violence, including the loss of earnings, medical expenses, expenses for new residence and other necessary expenses.

A domestic violence victim or a person finding out or becoming aware of an act of domestic violence has a duty to inform a competent authority who is required to take action under the Act.

When the information made is provided in good faith, the informant shall be protected and shall incur no liability, whether civil, criminal and administrative.

The information may be made orally, in writing, by telephone, by electronic means or by any other means.

When a competent authority becomes aware of an act of domestic violence or receives the information he shall be empowered to enter the relevant residences or scenes of action and inquire the person committing the act of domestic violence, the domestic violence victim or other persons present thereat as to the facts concerned. The competent authority shall also have the power to arrange medical examinations and treatments for the victim and direct the victim to take counsel with a psychiatrist, psychologist or social worker. If the victim wishes for a prosecution, the competent authority shall extract his complaint in pursuance of the Code of Criminal Procedure. If the victim is unable or had no opportunity to complain in person, the competent authority shall enter a complaint on his behalf.

"Competent authority" means a person authorised by the Minister to take action under the Act and includes an administrative or police officer under the Code of Criminal Procedure.

What should you check if you are buying land or a house in Thailand

Due Diligence when buying real estate in Thailand

Due Diligence is a term usually reserved in Western countries for systematic investigation of businesses or business transactions before entering into to them so as to ensure that the business proposition is a sound one and that there will be no unexpected consequences in proceeding.

In Thailand in relation to property law it is a term that is often used to describe the process in Western countries known as investigation of the title of a vendor of a real estate property so as to be satisfied that the purchaser will obtain a good and marketable title free from defects in title and encumbrances.

In pursuing due diligence in respect of the proposed purchase of a real estate property in Thailand one would normally expect that the following matters would be investigated and that a prospective purchaser would be satisfied with the outcome of those investigations so as to be confident of obtaining a good and marketable title to the property to be purchased . An experienced property lawyer can provide these services.

Land Documents and Title Status

1.      The first step to be undertaken in investigation of a title on behalf of a foreign purchaser is for the title deed to be translated into English, or the foreigners own language, so that it can be fully understood by the prospective purchaser.

2.      A full title search needs to be undertaken at the relevant Land Office so as to ascertain the nature of the title (Nor Sor 4 Jor (chanote), Nor Sor 3 Gor, Nor Sor 3, Por Bor Tor, etc) and what rights attach to it. It is necessary to check whether the title deed was legally issued, particularly when the original ownership document was not a title deed, but a lower level of document.

Chronology of Ownership

3.      In Thailand the system of title is similar to the Torrens Title first established in Australia. The title deed is the basis of title and usually, on the back of the deed, is a history of transactions that have occurred during the course of ownership. This will give important information as to the background of the title and its history. If necessary searches can be undertaken of documents disclosed in this list. This should verify the chain of the ownership of the land.

Legal Encumbrances, Leases or Other Rights Registered Over the Land

4.      The title search will also establish whether there are any mortgages registered or any other encumbrances, lease, obligations, charges, easements (called servitudes), claims, powers of attorney, caveats or any right registered against the land. Copies should be obtained of these. Under Thai law, all mortgages, easements, servitudes, and other encumbrances created over land must be made in writing and registered with the Land Office where the immovable property is located in order to be valid.

Thai law requires that a lease of immovable property for more than three years must be written and registered by a competent official. If the duration of the lease is three years or less, it is not registered with the Land Office, but it must still be made in writing.

This section of the due diligence report will state whether the land is leased to any other person for more than three years or whether there are any other tenancy rights (usufructs or right of benefit, superficies, habitation rights, etc.) which may affect the purchaser’s right to use the land. A contract to lease immovable property is not extinguished by the transfer of ownership. Therefore, the transferee is entitled to the rights and is subject to the duties of the transferor contained in the lessee.

Litigation

5.      It should be ascertained whether there had been bankruptcy proceedings against the owner, and whether there any court orders or proceedings pending which might affect the title.

Zoning, Building Control Regulations, and Environmental Regulations

6.      In Thailand, land use is regulated under the City Planning Act for residential, industrial, agricultural, environmental and cultural protection, or other purposes.

7.      Additionally, the construction of a building must be in compliance with the relevant rules, regulations, and notifications issued under the laws governing building control and the environment, as well as other relevant laws.

Therefore, this section of the report is meant to provide the buyer with the current zoning, building control, and environmental regulations that cover land use and building construction, so that you will be informed of whether the land can be used and built upon, as intended. It will confirm whether the buildings constructed on the land have been properly granted a construction permit and other requisite permits. Enquiries should be made as to the permitted use of the land to the relevant zoning requirements and whether the current use of the land including construction of improvements complies with local requirements.

8.      If anyone else other than the vendor will is occupying the land enquiries should be made as to the basis upon which they are occupying the property and the nature of their rights, if any

9.      Any drainage problems on the land or subsidence? If necessary expert opinion should be obtained.

Legal Access

10.   A physical inspection of the property should be undertaken so that an assessment can be made as to access issues and the like and these can be followed up with enquiries of local authorities Enquiries should be made as to the connection of the property to utilities such as electricity, water, telephone and like and as to whether those connections passed through adjoining properties or a directly to publicly owned land.

11.   Enquiries should be made as to whether there is legal access to the property whether by way of access to public roads or by way of registered easement, called servitude in Thailand.

12.   Are there any problems with the local residents, noise nuisance or other disturbances from surrounding land, or problems with access to the land?

Official Assessed Price

13.   IA check should be made at the Land Office in respect of land taxes, the registered value of the property as determined by the last transfer.

On-Site Survey

14.   In the case of a chanote there will be a survey plan of the land attached to the title blue. This may also be the case in Nor Sor 3 titles but they may not have been fully survey. In addition the land survey does not provide any guarantee that improvements have been erected within the boundaries of the property. If there is any doubt as to this a qualified surveyor should be retained to carry out an identification survey.

Caveat Emptor and Other Matters (not strictly Due Diligence Issues)

15.   The Latin maxim, caveat emptor, “let the buyer beware”, is a basic legal principle in the sale and purchase of all the property including immovable. It means simply that where property is sold, unless the contract provides otherwise, it is sold as is and subject to all physical defects that may be apparent from a proper inspection of the property. The words, UK the property has inspected. The prudent purchaser will therefore ensure that he undertakes a full and proper inspection of the property and where necessary retain experts in building, engineering pest extermination or otherwise to advise him or her as to the physical condition of the property. This is not a matter for due diligence but simply a matter of common sense

16.   If anyone other than the vendor will is occupying the land enquiries should be made as to the basis upon which they are occupying the property and the nature of their rights, if any

17.   Any drainage problems on the land or subsidence? If necessary expert opinion should be obtained.

18.   If the property is being purchased from a Thai limited company a full company search should be carried out with the Department of Business Development so as to ascertain the structure of the company and whether the persons contracting with you at power to act on behalf of the company.

19.   If anyone else other than the vendor will is occupying the land enquiries should be made as to the basis upon which they are occupying the property and the nature of their rights, if any

20.   Any drainage problems on the land or subsidence? If necessary expert opinion should be obtained.

21.   Are there any problems with the local residents, noise nuisance or other disturbances from surrounding land, or problems with access to the land?

Purchasing from a Property Developer

Buying a property from a developer in a housing estate should be somewhat safer but this is no excuse not to rigorously checking the title. There are however other matters that should be considered when purchasing from a property developer. These include:

1.      If the property is being purchased on an “off the plan” basis that it needs to be established whether the developer is also the builder and whether separate contracts need to be entered into with each of them.

2.      The contract, or separate contracts if necessary, needs to fully set out the terms and conditions of the agreement and attach a copy of the plans and specifications for the home and, essentially, contain all the usual provisions which would be contained in a building contract. The type and quality of materials to be used should be specified in the contract or its addendum. Appropriate warranties and conditions precisely setting out the obligations of each of the developer and builder should be set out.

3.      Check compliance with the requirements under the Land Allocation Act.

4.      Check the Environmental Impact Assessment approval report (if applicable).

5.      Have any building permits been issued? If yes, under whose name?

6.      Does the developer have a Housing Development License? Under what kind of sales structure is the project is sold? How long has the developer been developing properties in Thailand? What is the registered share capital? Which construction company has been contracted to build the houses? Can you instruct an independent building surveyor to inspect the building upon completion? How many houses are being built in the project? Could a new construction in the neighborhood change the value of your property? For example, you buy a condominium for its view on the sea and a future project comes to block it.

7.      Will the developer connect the land to public utilities? Will you have to pay for separate meters or connect all utilities yourself?

8.      Will the developer take care of the registration of the house in the foreigner's name and the house registration booklet (Tabian baan)? Will there be a lease agreement, usufruct, servitude or superficies added at the transfer of the property?

9.      If the property is sold under a leasehold structure, who will be responsible for payment of building and land taxes?

10.   Will the land, including the common land, be delivered free any encumbrances, mortgages other liens?

11.   When is the property to be completed? What will happen if the completion of the property is late? What penalties apply?

12.   Who will be responsible for transfer or registration fees? It can be the buyer, the seller, 50-50% or otherwise.

13.   What services will be provided? How much is the monthly or yearly maintenance / service fee in the project? How will this be calculated? Does this decision rest with the house / plot owners? Remember that this can have an impact for many years.

14.   Is it possible to cancel the contract? If so, will the deposit be refunded?

Usufructs in Thailand – a trust by any other name

Foreigners are forbidden from owning land in Thailand by the Thai Land Code. There are number of exceptions to this rule (eg: investment of 40 million baht, BOI approval).  Notwithstanding the rule against foreign land ownership there are ways in which a foreigner can secure the right to occupy land and/or houses for a significant term or for the foreigner’s life. A Usufruct agreement can secure the right to possess and enjoy a property without being the full owner. And it is entirely legal.

Origins

A Usufruct is a real property or real estate right that originates from Roman law. Under Roman Law a wife had very limited rights to own property and, in particular, real estate owned by her husband. To remove this injustice the right of usufruct was created under Roman law. A usufruct interest gave the wife of a Roman citizen the right to occupy real estate during her lifetime and typically the property would then pass to their children. The concept of a usufruct interest has been adopted under the Thai Civil and Commercial Code.

What Is a Usufruct Agreement?

The word Usufruct comes from the Latin words “usus” (meaning the use or possession of) and “fructus” (meaning fruit). So it can be seen that a Usufruct gives the person holding that interest (called a usufructuary) the right to use and occupy the house and/or land for the term of the Usufruct or for the life of the usufructuary. If you think that sounds like what is called a trust in Western law and your right. The Usufruct is nothing more or less than a limited trust.

Usufruct contracts are governed by sections 1417 to 1428 of the CCCT. A Usufruct is a right granted by the owner(s) of the land/house in favour of a Usufructuary in which this person has the right to possess, use and enjoy the benefits of immovable property (section 1417 CCCT). The Usufructuary also has the right to manage the property (sect 1414 CCCT). It can be on a piece of land, on a house or on both of them.

Besides possession and enjoyment of the property, the Usufructuary has also the legal right to use and derive benefits from the property that belongs to another person, as long as the property is not damaged. “Fruit” should be understood not only in its natural meaning (fruits, livestock, etc) but also its legal meaning (rent, etc.).

Section 148 of TCCCT defines what can be the legal fruits in Thailand: “Legal fruits denote a thing or interest obtained periodically by the owner from another person for the use of the thing; it is calculated and may be acquired day by day or according to a period of time fixed.”

So if you have a Thai wife or girlfriend she can buy a parcel of land and grant to you a usufruct interest in the land for free. You then have the right to enjoy the use of the property. You can require her to leave the property. You can lease the property and receive the rents. A Usufruct can be for a specified term, of up to 30 years or it can be for the life of the usufructuary but terminates on his death. But the term of the life interest is NOT restricted to a 30 years maximum. In addition if you decide to build on this land, it is possible for you be the full owner of the buildings and constructions. A usufruct interest is a very valuable and strong property right.

In Thailand, a Usufruct can be created for a limited time (5 years, 10 years, etc.) or the life of the Usufructuary (see Section 1418 TCCCT). If no time has been fixed, it is presumed that the Usufruct is for the life of the Usufructuary. In such a case, the Usufruct ends at the death of the Usufructuary.

THE USUFRUCTUARY CAN LEASE THE LAND/HOUSE

A Usufructuary has the right to enjoy, use and possess the land. He/she is acting like the real owner but cannot sell or destroy the property as he/she is NOT the full owner. However, he/she can transfer rights on the land/house to a third party. Even if the Usufruct will end at the death of the Usufructuary (or a fixed period of time), the Usufructuary can lease the land to a third party and this second agreement will NOT end when the Usufructuary dies as determined in Supreme Court ruling 2297/1998: "the lessor does not have to be the owner of the property". In this way, the Usufructuary can grant a thirty year lease to a third party. In this way, you could pass on your rights to your children or other relatives even after death if the lease was entered into before daeth. Do not forget that all leases over 3 years must be registered at the Land Office and taxes have to be paid.

Registration

By decision of the Supreme Court of Thailand, all Usufruct agreements must be registered to be valid (Supreme Court decisions 6872/2539). Once registered at the Land Office where the title deed is located, the Usufructuary’s interest will be recorded on the title. After registration, the land/house can only be sold provided the buyer respects this Usufruct. This is why it will be difficult for the owner to sell the land/house after a Usufruct is registered as nobody wants to buy a property in which they could not live. But be aware that Land Offices in Thailand have different rules and requirements. Most Land Offices will ask to see the usufructuary’s passport and visa. A translation of the passport might also be requested. They will also ask the usufructuary to provide his/her father’s and mother’s name. Some Land Offices will only register a usufruct between married couples even though the law does not require the parties to be married.

The land (title deed) must unencumbered in order to register a usufruct. That means a usufruct cannot be registered on land that is mortgaged. The mortgage needs to be discharged or the Usufruct registered after discharge of the mortgage. Bear in mind however that it may not be binding in the meantime against third parties. 

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Right of Superficies

Right of Superficies

The right of Superficies is a European Civil Law concept that has been incorporated into the Commercial and Civil Code of Thailand (CCCT). The relevant law is set out sections 1410 and 1416 of the Code.  A right of superficies is a real estate interest or real right that attaches to immovable property (real property). It is not a personal property right the effect of which is that ownership of the underlying property can change hands but the superficies right remains on the title in the same way as does a mortgage if not discharged on transfer of title.

A right of superficies may be granted by the owner of real estate in favour of another person, whether foreign or Thai. The person who granted such a right is called a superficiary. A right of superficies is a right to own buildings, structures and improvements erected upon or under the land (Section 1410). A right of superficies can be transferred to another person or can be passed to the heirs of a superficiary on his or her death unless otherwise specified in the agreement (section 1411). A right of superficies may be granted to own building and structures upon land for a fixed term of up to a maximum of 30 year or for the life of the superficiary or for the life of the owner of the land.

It is common to find right of superficies added to a lease agreement on the land with both contracts having the same term. As in the case of leases renewals of superficies contracts are permitted.

In order to be valid a superficies agreement must be registered and upon this being done the identity of the superficiary will be recorded on the title.

As in the case of usufructs, superficies can be granted for valuable consideration or without consideration. If a monetary consideration is stipulated then a tax of 1.1% on the total consideration for the full term is payable to the Land Office at the time of registration.

Lanna Lawyers

99/107 Soi 10 Laddarom Elegance Payap                          

Middle Ring Road

T. San Klang A. San Kamphaeng 

Chiang Mai 50130 Thailand

Phone:                    +66(0)849047797

Email:                     lannalawyersu@gmail.com

Blog:                      http://thailandintrigue.blogspot.com/

Living Wills in Thailand

A "Living Will", is what is known in Australia as an Enduring Guardianship Appointment. It is not in fact a Will at all. A Will operates as from the time of the testator’s death and sets out the testator’s testamentary wishes as to the disposal of his or her property after death.

A "Living Will" on the other hand allows a person to decide in advance what medical care and treatment they will receive if they ever become unable to specify those wishes themselves. For example, you can designate whether you wish to be kept on life prolonging machines if there is no longer any hope that you will recover from an accident or long-term terminal medical condition, whether or not you want food or hydration, whether or not you want medication to make you more comfortable and other decisions of this nature.

The Thai Civil and Commercial Code makes no provision in relation to Living Wills. Living Wills were first recognised in Thailand in the Health Act in 2007.  

That Act provides in Section 12: “An individual is entitled to make a Living Will expressing that person's intentions to refrain from receiving medical treatment for the purpose of extending the last phase of their life or for ending the suffering arising from the illness.

The Living Will should be based on the principles and regulations of the Ministerial Regulation.  Public Health officials acting in accordance with provisions in a Living Will "are not conducting themselves improperly and will not be held responsible."

The regulation was signed on 6 October 2010 by the Prime Minister of Thailand and came into effect on 20 May 2011.

A living Will does not allow mercy killing or euthanasia.

A "Living Will" in Thailand, must comply with following conditions:

- The person making the Will must be at least 18 years of age

-The Living Will must specify the date of the Living Will and all information about the person making the Will (full name, address, Thai ID, contact number, etc.).

- The Living Will must indicate which health care the Willmaker does not wish to receive and all information related to intentions about health care.

- It must be signed by the person making the Will and 2 witnesses. The witnesses should print therefore names addresses, ID card number is and relationship to the Willmaker. It is preferable that the witnesses not be beneficiaries under the Willmaker’s estate.

- The writer of the Will, if not the declarant, must be specified.

Lanna Lawyers                                       

99/107 Soi 10 Laddarom Elegance Payap (Q House)

Middle Ring Road

T. San Klang A. San Kamphaeng Chiang Mai 50130 Thailand

Phone:                    +66(0)849047797

Email:                     lannalawyersu@gmail.com

Blog:                      http://thailandintrigue.blogspot.com/

Prenuptial Agreements in Thailand - Desirable or Effective?

By Joe Lynch, Accredited Australian Family Law Specialist

Lanna Lawyers, Chiang Mai, Thailand

Email:  lynchlaw.net.au@gmail.com

A Thai prenuptial agreement is a contract between a couple who plan to marry. Prenuptial agreements are recognised under section 1465 of the Thai Civil and Commercial Code (the “Code”). Prenuptial agreements are sometimes called ante-nuptial agreements and pre-nuptial agreements. The basic essential element is that it is a pre-marriage agreement, or contract, entered into in advance of the marriage.

Thai prenuptial agreements must be registered at time of marriage

Under section 1466 of the Code prenuptial agreements must be in writing and signed by both parties in the presence of at least two witnesses and registered at the District (Amphur) office at the time of marriage where the marriage takes place in Thailand or at a Thai embassy or consulate if the marriage takes place overseas. If the prenuptial agreement is not registered it is void.

Prenuptial agreements cannot be varied without Court approval

After marriage the prenuptial agreement cannot be altered except by authorisation of the Court. (Section 1467of the Code)

Post-nuptial agreements are voidable

 Any agreement between a husband and wife during marriage (a post-nuptial agreement) may be voided by either party during the marriage or within twelve months after divorce provided that the right of third parties acting in good faith are not adversely affected (Section 1469).

When is a Thai prenuptial agreement void

Any clause in a Thai prenuptial agreement that is contrary to public order or good morals, or provides that the relations between the parties with regard to property are to be governed by foreign law is void (Section 1465).  This requirement is a good reason not to enter into a Thai prenuptial agreement if another jurisdiction and/or forum allows prenuptial agreements that more effectively regulate the division of property on marriage or relationship breakdown

 

What can a prenuptial agreement achieve

A Thai prenuptial agreement will generally identify the property that both parties brought into the marriage and may stipulate the basis of management of marital assets rights during marriage. (Sections 1476 and 1476/1).  It can also stipulate how assets are to be divided between the husband and wife in the event the marriage is dissolved by death or divorce although this may not be enforceable. The contract should be drafted in both the Thai and the language of the non Thai party.  Each party should be independently advised by their own lawyer and evidence provided as to that advice.

The contract and its provisions must not be against good morals or the law.  The agreement can only alter the parties’ legal rights on divorce to the extent permitted by Chapter IV of the Code.  A provision in a Thai prenuptial agreement that the division of property between husband and wife shall be governed by foreign law is void.  Under Thai law the extent to which a prenuptial agreement can dictate how property is divided on marriage breakdown is very limited.  It is therefore important to understand the basis of property division on marriage breakdown under Thai law.

Division of property in Thailand is governed by what is known as a community property regime.  This regime applies in many jurisdictions in the United States and in a number of other countries.  There are two types of matrimonial assets in Thailand and the type of property is relevant to the division of property on divorce.  Firstly, there is Sin Suan Tua (Personal Property) and, secondly, Sin Somoros (Common Property).

Sin Suan Tua (Personal property)

Sin Suan Tua (Personal property) under Sections 1470 and 1471 is 

               1. Property belonging to either spouse before marriage;

               2. Property for personal use such as clothing or tools of trade;

               3. Property acquired during marriage by way of inheritance or gifts;

               4. Khongman, otherwise known as an engagement gift.

However section 1470 provides “Property of husband and wife except in so far as they are set aside as Sin Suan Tua, are Sin Somros” and section 1474further provides “In case of doubt as to whether a property in "Sin Somros" or not shall be presumed to be "Sin Somros". This means that all property is deemed to be common property unless the person asserting that certain property belonging to him or her is personal property can prove this. This is where a Thai prenuptial agreement can, to a limited extent, be effective.

Sin Somoros (Common property)

Sin Somoros (Common property) under section 1474 is

      1. Property acquired during marriage;

      2. Property acquired by either spouse during marriage through a               will of gift declared by such will or document of gift to be Sin                 Somros;

      3. Property that is the fruit of Sin Suan Tua.

In terms of paragraph 3, by way of example, if a wife has inherited shares in company they would be seen as Sin Suan Tau but the dividends from the company would be Sin Somoros.  Property that is Sin Somoros is under joint control. The permission is needed of both spouses in dealing with Sin Someros.

Property Division on divorce

Upon the granting of the divorce the Sim Somros (common property) is divided into equal shares between the parties. And each party retains their Sin Suan Tua (Personal property).

Apart from each of the spouse's personal Sin Suan Tua property, a Thai marriage is likely to result in the creation of common property owned jointly or severally by the husband and wife (Sin Somros). All such property acquired throughout the course of the marriage is common property regardless of in whose name the title is held. Unless the parties can agree on how to divide the common property the Court will divide the assets subject to section 1472 of the Code. The general principle applies that 'benefit and income' and the fruit of each spouse's personal property (e.g. rent received from a personal property) acquired during the course of the marriage will be divided equally as joint property between husband and wife.  Often property of husband and wife during marriage will consist of a mix of personal and common property. A practical solution to dealing with the financial consequences of a marriage in Thailand is to enter into a prenuptial agreement governing the administration of the couple's finances and property during their marriage. Under Thai law it is not possible to exclude the common property rule in a prenuptial agreement.

An important aspect of a prenuptial agreement is of course the weight given to it in a contested divorce. The Family Courts in Thailand have power to determine the enforceability of the clauses in the contract. Simply, any provision agreed to in the prenuptial against good morals or against the law will not be binding, and the distribution of assets is basically governed by the statutory system in the Code. A prenuptial agreement cannot effectively influence the statutory system and generally the statutory law on the division of marital assets continue to apply in a contested divorce.

Should prenuptial agreements be entered into under non-Thai foreign law?

If, under the law of the country of which one of the parties resides or is a citizen, the entering into of binding prenuptial agreements is permitted on terms more flexible than permitted under Thai law  consideration should be given to entering into such an agreement under the law of that country.   It may be possible to specify in that agreement that the law of that country is the agreed forum in the event of a breakdown of the relationship.  For example, under the Australian Family Act binding financial agreements can be entered into between not only by couples who intend to marry but also between couples who intend to only live together in a de facto relationship.  Often one partner will want to quarantine his or her existing assets for the benefit of children of a previous marriage or relationship.  It is important to obtain expert legal advice as to both Thai law and the law of the foreigner’s country of residence before entering into a prenuptial or domestic relationship agreement.

Top 10 tips to follow in entering into a Thai prenuptial agreement

1.      Obtain specialist legal advice as to Thai law and the law in the foreigner’s own country

2.      Undertake any appropriate preliminary planning steps such as estate planning and ensuring that, if possible, separate property is not converted to common property during marriage.

3.      After determining the proposed course of action and having considered jurisdiction, forum and conflict of laws issues make sure all formal requirements in either or both jurisdictions are complied with (for Thai agreements see Sections 1465 and 1466 of the Code).

4.      Have the agreement prepared in both languages and ensure that both parties receive independent legal advice.

5.      Prenuptial agreements should provide full and frank disclosure of each party’s assets and financial resources.

6.      A prenuptial agreement must clearly identify and define each party’s personal or separate property.

7.      Any Thai prenuptial agreement must clearly stipulate the basis of management of common property during marriage.

8.      A prenuptial agreement must clearly stipulate the basis of division of marital assets on a breakdown of marriage subject to the prohibitions placed on this under Thai law and, possibly, on death taking into account the limitations imposed under Thai law.

9.      Each party should review their wills both in Thailand and elsewhere regularly as appropriate.

10.   It is important to adhere strictly to any financial management regime required or contemplated by the agreement.

Lanna Lawyers can provide advice as to the relevant Thai law and also as to the relevant law in many other countries through our in-house counsel or by referral to other appropriately qualified lawyers whom we deal with regularly.

Lanna Lawyers                                       

Company Limited

99/107 Soi 10 Laddarom Elegance Payap (Q House)

Middle Ring Road

T. San Klang A. San Kamphaeng Chiang Mai 50130 Thailand

Phone:                    +66(0)849047797

Email:                     lynchlaw.net.au@gmail.com

Blog:                      http://thailandintrigue.blogspot.com/

Facebook:              www.facebook.com/LannaLawyers.

                                                                                         

Divorce in Thailand                                       

By Joe Lynch, Accredited Australian Family Law Specialist

Lanna Lawyers, Chiang Mai, Thailand

Email: lynchlaw.net.au@gmail.com

                                                                                                           

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:

1. a 3-year period of separation
2. One spouse has deserted the other for over one year
3. The husband has taken another woman as his wife
4. The wife has committed adultery
5. One spouse is guilty of misconduct (criminal or otherwise)
6. One spouse has physically or mentally harmed the other
7. Lack of maintenance and support
8. One spouse had been imprisoned for more than one year causing the other party excessive injury or trouble
9. One spouse has had incurable insanity for at least 3 years
10. One spouse has broken the bond of good behaviour
11. One spouse has an incurable, communicable and dangerous disease
12. 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.

See also

Property Division on Divorce in Thailand

Prenuptial Agreements in Thailand

Parents and Children – Custody and Parenting Law in Thailand

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Lanna Lawyers specialises in Family Law specifically Marriage and Divorce in Thailand, Prenuptial Agreements both under Thai and Australian law. Should you need legal assistance please feel free to contact us for a consultation. Our licensed Thai lawyers, foreign lawyers and solicitors are available to help you.