Tuesday, February 16, 2016
Prenuptial Agreements for Canadians in Thailand - Overview of Canadian Law
With the exception of Quebec, private Law in Canada originates from Common Law. A Prenuptial Agreement ( also be called a Cohabitation Agreement or Common-Law Partnership Agreement if the partners are not getting married) is a type of legal document entered into by two people prior to marriage or another form of civil union. Basically, the document lists the assets of each party, and outlines which party should get what in the event of separation or death. Canadians are advised to make a prenuptial agreement Thailand should they marry a Thai spouse.
Canadian Law allows prenuptial agreements between spouses. For instance, you will find provisions about them in the Family Law Act ( R.S.O. 1990, c F.3) of Ontario, or in Matrimonial Property Act of Nova Scotia, (Matrimonial Property Act. R.S., c. 275, s. 1).
Because each province has its own particularities, pick a law firm knowing about Canadian Law.
An overview of Pre-Nuptial agreements in Canada
By John C. Soby, Q.C. and Alicia T. DuBois of Soby Boyden Lenz
Calgary, Alberta, Canada
The Canadian Constitution and its Effect on Marriage and Divorce
The independent state of Canada was born out of the British Commonwealth and is structured as a federation which is comprised of 10 provinces and 3 territories.[1] As specified in section 91(26) of the Canadian Constitution Act of 1867, the Parliament of Canada exercises exclusive legislative authority with respect to "Marriage and Divorce". In accordance with that authority, and as set out in sections 92(12) and (13) of the Constitution Act of 1867, the Parliament of Canada conferred upon the provincial legislatures the exclusive power to enact their own provincial laws in relation to "The Solemnization of Marriage in the Province" and "Property and Civil Rights in the Province", respectively. The practical implication associated with this division of power between the federal and provincial governments is that while the federal government is the governing authority with respect to divorce, each province and territory has the power to govern its citizens with respect to marriage and property division upon marriage breakdown.[2] Therefore, it is, for the most part, the provincial and territorial legislatures that govern the citizens with respect to matters pertaining to domestic contracts, including prenuptial agreements.
Statutory Requirements for Prenuptial Agreements in Canada
Federal Law
The Divorce Act is the federal statute that governs divorce across Canada. The Divorce Act stipulates the grounds for divorce in Canada, provides the basis on which spouses may seek spousal support and, where applicable, governs entitlement for child support, in addition to custody and access rights to children of the marriage. The Divorce Act briefly addresses domestic agreements and only makes reference to spousal agreements in the context of child support orders, spousal support orders, and the variation of child support orders in sections 15.1(5), 15.2(4), and 17(6.2), respectively. With respect to spousal support orders, the Divorce Act simply states that an agreement between spouses is a factor that ought to be considered when the court makes a determination regarding one spouse's application for spousal support. With respect to child support orders, or variations to child support orders, the Divorce Act focuses on ensuring that, if the spouses who have entered into an agreement have children, the best interests of the children are protected in the provisions of the spouses' agreement.
Further in that regard, in conjunction with the Divorce Act, spouses must consider the Federal Child Support Guidelines and adhere very closely, if not precisely, to the child support provisions therein. In 1997, the federal government put Child Support Guidelines in place for each province and territory and these Guidelines were recently updated in May, 2006. The Child Support Guidelines basically determine the amount of child support owed by the non-custodial parent to the primary parent based upon the non-custodial parent's gross income and the number of children of the marriage in the care of the primary parent. The 1997 Child Support Guidelines were put in place in order to address the unpredictable and varying awards of child support the Courts had ordered historically and also to address the great number of single mothers and children that were living in poverty due to the breakdown of marriages. Overall, the Child Support Guidelines have fulfilled their purpose and therefore, the Canadian courts are very reluctant to deviate from the Child Support Guidelines. As a result, and as stated in the Divorce Act, while the courts will consider prenuptials that deviate from the Child Support Guidelines, the parties must be able to provide compelling reasons supporting the deviation while also showing the court that the financial needs of the children will be sufficiently met under the proposed provisions of the prenuptial contract.
According to the Divorce Act, the courts may recognize and uphold provisions of a prenuptial contract that address custody of and access to children of the marriage so long as the agreements support the best interests of the children. For instance, generally speaking, Canadian courts operate on the premise that children benefit from a loving relationship and contact with both parents and that custody/access regimes ought to reflect this premise, with the exception of very severe circumstances of abuse, etc. Therefore, so long as spouses with children contract in a manner reflective of the importance of both parents' involvement with the children and neither parent has contracted out of his or her rights regarding the children, the federal statute enables the courts to recognize the provisions agreed upon in prenuptial contracts.
Despite the fact that the federal Divorce Act enables courts to consider and uphold contractual provisions regarding child access and custody under certain conditions, a number of the provinces have contradictorily legislated that spouses cannot contract regarding custody or access rights to children of the marriage.[3] This will be further discussed below.
Provincial and Territorial Law
Despite the fact that each province governs its citizens with respect to marriage and matrimonial property division, the laws across Canada pertaining to matrimonial property division universally operate on the overarching presumption of equitable sharing of marital assets between spouses on marriage breakdown. The parties are permitted, to a large degree, to contract out of this overarching presumption by creating and executing a valid prenuptial agreement with the aim of predetermining their division of matrimonial property, either in part or whole, in the event of marriage breakdown.[4] While all provinces and territories permit spouses to contract with respect to matrimonial asset and debt division, two provinces and one territory limit that allowance in that spouses are not permitted to contract out of their respective rights to the matrimonial home.[5]
It is unanimously required by all provinces and territories that prenuptial agreements shall be in writing. Furthermore, with the exception of one province[6], all provinces and territories agree that prenuptial agreements must also be signed by the parties and witnessed. The Yukon Territory statute further requires that only independent witnesses are permitted to sign prenuptial agreements.[7]
While only five of the Canadian provinces' legislations[8] are worded so to either explicitly require or implicitly suggest that independent legal advice is to be sought by and provided to both parties to a prenuptial agreement, the majority of recently reported cases from across Canada indicate that the courts generally acknowledge and encourage couples to obtain independent legal advice when finalizing prenuptial agreements in order to ensure their agreements are upheld if challenged.[9]
In light of the fact each provincial and territorial government has the authority to determine its own laws regarding marriage and matrimonial property division upon marriage breakdown, there are notable differences between the provinces with respect to what types of provisions within a prenuptial agreement will be recognized and upheld by the courts. For instance, and further to earlier discussions herein, approximately half the provinces and territories permit couples to contract regarding custody of and access to the children of the marriage while the other half explicitly forbid it. Similarly, approximately half the provinces legislate that courts can amend and/or deem invalid provisions within prenuptial contracts that are not in the child's best interests.[10] The Yukon Territory legislation narrows this issue even further in that the courts are able to amend and/or deem invalid any provision that does not reflect the best interest of the children of the marriage with respect to child support payments.
Another marked difference amongst legislation is the classification of specific assets. With the exception of specific exemptions,[11] all provinces and territories consider property acquired during the marriage such as matrimonial and vacation homes and their contents, vehicles, registered retirement savings plans (RRSP's), investments, and pension plans to be matrimonial property. There is, however, significant discrepancy amongst provinces with respect to the classification of business assets. The provinces of Nova Scotia, New Brunswick and Newfoundland, unlike the rest of Canada, have determined and legislated that business assets are not matrimonial property.[12] This determination has a profound influence on the balance of ‘equitable sharing' for the parties involved because only property deemed to be matrimonial property is to be equally divided between spouses upon marriage breakdown. That being said, however, simply because the provincial legislation does not classify these assets as matrimonial assets does not necessarily mean spouses are precluded from contracting in a manner that shares business assets equally as part of the matrimonial assets. These laws do, however, influence the degree of disclosure required between spouses when creating prenuptial contracts. In addition, if the legislation does not support a couple's equitable consideration of business assets in their contract, there is less likelihood that the courts will deem such a division as fair or reasonable without proof that the business was contributed to equally by both spouses. In the remainder of Canada's provinces and territories the legislation and case law alike assume that the business assets of one spouse ought to be attributed to both spouses equitably upon marriage breakdown and the onus is significant for one spouse to show otherwise.
The Law of Contract in Canada and Prenuptial Contracts
In addition to case law that aims to interpret legislation, the Canadian courts also adjudicate cases on the basis of the law of contract, as was done prior to the enactment of statutes governing prenuptial agreements and other domestic contracts. Most commonly, when the judiciary applies the law of contract to prenuptial contracts the contracts are reviewed on grounds relating to misrepresentation and fraud, duress, undue influence, and unconscionability.
Misrepresentation and Fraud
Misrepresentation occurs in the realm of prenuptial contracts when one spouse, while in prenuptial contract negotiations with another spouse, does not provide full or accurate disclosure with respect to his or her assets and/or debts to the other spouse. While providing false, incomplete or no disclosure at all are grounds to question the validity of a prenuptial contract, the courts have ruled that there is a significant difference between mistakenly providing insufficient disclosure and purposefully providing false information. While case law indicates the Canadian courts may or may not make allowances for mistakes,[13] the courts are less forgiving with respect to fraudulent misrepresentation. The law of contracts in Canada supports the rescission of prenuptial contracts under these circumstances because it is recognized that it is improper to uphold contracts in which one spouse intentionally misrepresents his or her financials for the purpose of inducing the other party to enter into a contractual agreement he or she may not otherwise agree to had accurate disclosure been provided. The remedy under the law of contract for misrepresentation is a claim for damages and/or the rescission of the contract.[14]
The Canadian courts have firmly decided that intentional misrepresentation in the process of creating and finalizing a prenuptial contract is sufficient grounds to rescind the contract in whole or part, especially when the misrepresentation involves financials. For instance in Le Van v. Le Van[15] the husband and wife entered into a prenuptial agreement and continued to live their lives on the false understanding, as put forth by the multi-millionaire husband, that the parties had very limited means. Upon the breakdown of the marriage and the wife's learning that the husband had been dishonest with her about his financial status prior to and for the duration of their marriage, the wife challenged the couple's prenuptial contract. The court found that the husband had materially misrepresented his financial circumstances. Due to the husband's misrepresentation and also because the wife failed to understand the nature of the contract the parties had entered into, the court determined that the parties were unable to appropriately negotiate the terms of their prenuptial contract. As a result, the prenuptial contract was rescinded and the wife was awarded a $5.3 million dollar equalization payment.
Duress, Undue Influence and Unconscionability
Duress occurs when one party to a contract induces the other party to enter into the agreement by way of threat. If the threat by one party is proved to have coerced the opposing party against his or her will to enter into the agreement, the law of contract states that the coerced party's consent ought to be vitiated. Undue influence is a milder form of duress in that while threats need not be made, a sense of pressure or influence may be sufficient to create a circumstance in which an agreement between parties is improperly entered into.[16] Most commonly, the courts use the term ‘unconscionable' when describing situations involving one party who is taken advantage of by the other while in the process of creating and finalizing a domestic contract. Unconscionability encompasses situations involving one party who, opportunistically, enters into a contract with another and in doing so capitalizes on the other party's weaknesses, ignorance, lack of sophistication, or unequal bargaining power.[17]
Canadian courts often simultaneously address the concepts of duress, undue influence and unconscionability in the realm of prenuptial contracts. In Freake v. Freake, Justice Cameron of the Newfoundland Court of Appeal summarized the two-part test that is to be applied when determining what constitutes unconscionable conduct as such: "1) there must be an inequality of position of the parties which might arise out of ignorance, distress or incapacity; and 2) the stronger of the two must have obtained a substantial benefit." [18] Case law from across the country, with differing fact scenarios has confirmed what unconscionable conduct is on the part of one spouse. The common themes in these cases tend to involve one or more of the following: 1) pressure on one spouse to sign the prenuptial contract,[19] 2) signing the contract without independent legal advice or without knowledge of the law;[20] 3) signing the contract without a true understanding of the nature and consequences of the contract;[21] and 4) signing the contract while experiencing a significant source of stress and while in a vulnerable state.[22]
Conclusion
This paper only begins to address the complexities involved in the creation and finalization of a valid prenuptial contract in Canada. The very basic requirements of this process, as briefly outlined herein, involve detailed attention to a number of statutes and legal concepts, in addition to thorough consideration of the dynamics of the relationship between the spouses who are subject to the agreement. Due to the direction recent law has taken and the ever-growing necessity for spouses to obtain independent legal advice, the creation of a legally binding prenuptial agreement ultimately becomes the delicate task of counsel who must not only employ a strong sense of intuition about the personalities involved and know the law as it currently is, but counsel must also attempt to put in place the necessary safeguards to ensure their client's interests are protected as the law and the parties' circumstances evolve over the years to come.
Once the parties have executed the contract, typically the contract is analyzed further only if and when one party to the contract challenges the agreement. At that juncture, the determination of the validity of the agreement is then left to the court's interpretation of statutes and the application of contract law. The judiciary undoubtedly exercises a significant degree of discretion when engaged in this process which invariably gives rise to the evolution of the law surrounding prenuptial contracts. Despite the uncertainty surrounding the future, the safest practice with respect to prenuptial contracts is one that applies as much knowledge of the law to the parties' fact scenario as possible.
[1] Geographically speaking, the Provinces of Canada from west to east include: British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland. The territories, also from west to east, include: Yukon Territory, Northwest Territory and Nunavut. This paper aims to summarize the law pertaining to prenuptial contracts across Canada, with the exception of the Province of Quebec. The Province of Quebec is excluded from this study due to the fact that Quebec is a common law province and differs from the other Canadian provinces with respect to how its laws are structured. Further in that regard, it is also our understanding that Mr. Kalman Samuels, Q.C. has undertaken to provide a paper regarding the Province of Quebec.
[2] What is important to note is that each province's legislation regarding property division is only applicable to property within the borders of that province. Therefore, one province does not have the authority to determine the manner in which property held in another province is to be divided.
[3] The Provinces of British Columbia, Ontario, Newfoundland, New Brunswick, and Prince Edward Island, in addition to Northwest Territories and the territory of Nunavut do not allow spouses to contract with respect to custody or access rights to children of the marriage.
[4] The idea that couples are able to contract out of their rights to significant matrimonial property and that under appropriate circumstances, the courts ought not undo what spouses previously agreed to was strongly supported by a relatively recent decision of the highest court in Canada, the Supreme Court of Canada, in the case of Hartshorne v. Hartshorne (236 D.L.R. (4th) 193).
[5] Manitoba, Ontario and Yukon Territory have enacted legislation that states ant clause in a prenuptial contract that purports to limit a spouse's right to his or her share of the matrimonial home is unenforceable.
[6] As per the Marital Property Act (C.C.S.M. c. M45) of the province of Manitoba, section 1(1) as noted within the definition of "spousal agreement".
[7] Section 64 of the Family Property and Support Act R.S.Y. 2002, c.83.
[8] Namely, Alberta, Ontario, Newfoundland, New Brunswick, and Prince Edward Island.
[9] Reischer v.Reischer [2006] B.C.J. No 1108; Mraovic v. Mraovic [2003] M.J. No. 457; Rogerson v Rogerson [2004] N.S.J. No. 152; LeVan,v. LeVan [2006] O.J. No 3584, Khan v. Khan [2005] O.J. No. 1923 and Dhanna v. Dhanna [2004] O.J. No. 5036.
[10] The Provinces of Ontario, Newfoundland, New Brunswick, Nova Scotia, Prince Edward Island and Northwest Territory and Nunavut do not permit spouses to contract in a manner that fails to consider the best interests of children of the marriage.
[11] Recognized property exemptions in Canada include property brought by one spouse to the marriage, inheritances, gifts from third parties, and insurance proceeds from settlement claims.
[12] The legislation of these provinces do enable compensation to be paid to spouses who have contributed to the other spouse's business in some direct fashion. It is clear, however, that the courts tend to grant compensation awards that are not as substantial as awards granted on the basis of equitable sharing.
[13] Freake v. Freake [2004] N.J. No. 222; Montreuil v. Montreuil [1999] O.J. No. 4450; Demchuk v. Demchuk (1986), 1 R.F.L. (3d) 176; Dubin v. Dubin 34 R.F.L. (5th) 227 (Ont. SCJ); Pruss v. Pruss (2000) 12 RFL (5th) 188 (Ont SCJ); Murray v. Murray (1994) 10 RFL (4th) 60 (Alta. C.A.); and, in part, Dilly v. Hall-Dilley [2006] B.C.J. No 2021 also supports this premise;
[14] G.H. Treitel, The Law of Contract, 9th ed. (London: Sweet & Maxwell, 1995) [hereinafter referred to as The Law of Contract].
[15] [2006] O.J. No. 3584.
[16] The Law of Contract, Ch 10.
[17] The Law of Contract, Ch 10.
[18] [2004] N.J. No. 222, para 47.
[19] Horvath v. Horvath [2005 B.C.J. No. 1253 and LeVan,v. LeVan [2006] O.J. No 3584. It is important to note that as per the case of Reischer v. Reischer [2006] B.C.J. No 1108, an ultimatum is not necessarily recognized by the court as undue pressure to sign a prenuptial agreement, especially if all other factors, such as adequate independent legal advice and absence of duress, validate the contract.
[20] Horvath v. Horvath [2005 B.C.J. No. 1253, Khan v. Khan [2005] O.J. No. 1923 and Dhanna v. Dhanna [2004] O.J. No. 5036.
Friday, September 6, 2013
สิทธิเก็บกิน
สิทธิเก็บกิน
(usufruct in Thailand)
เป็นสิทธิอย่างหนี่งที่คล้ายคลึงกับสิทธิอาศัย แต่ในความหมายโดยนัยแล้ว สิทธิเก็บกินนั้นจะมีความหมายที่กว้างกว่า สิทธิอาศัย โดยสิทธิเก็บกินเป็นสิทธิที่เกิดขึ้นในอสังหาริมทรัพย์ ที่ผู้ทรงสิทธินั้นมีสิทธิครอบครอง ใช้ และถือเอาซึ่งประโยชน์แห่งทรัพย์สินนั้น และผู้ทรงสิทธิยังมีอำนาจที่จะจัดการทรัพย์สินอีกประการหนึ่งด้วย
ระยะเวลา
สิทธิเก็บกินนั้น หากไม่ได้มีการกำหนดระยะเวลาให้ กฎหมายให้สันนิษฐานไว้ก่อนว่า สิทธิเก็บกินมีอยู่จนกว่าผู้ทรงสิทธิจะถึงแก่ความตาย แต่ถ้าได้กำหนดว่าให้มีเวลาเท่าใดก็ ให้เป็นไปตามที่กำหนดไว้ เช่น กำหนดระยะเวลาไว้ 20 ปี ผู้ทรงสิทธิเก็บกินก็สามารถมีสิทธิในอสังหาริมทรัพย์นั้น 20 ปี หลังจากนั้นสิทธินี้ก็จะสลายไปตามกำหนดเวลาที่ได้กำหนดกันไว้ และสามารถจดทะเบียนสิทธิเก็บกินได้ในกำหนดระยะเวลาสูงสุดตามที่กฎหมายบัญญัติไว้นั่นคือ 30 ปี
สิทธิของผู้ทรงสิทธิ
-หากทรัพย์สินเสื่อมราคาหรือทรุดโทรมลงไปตามปกติธรรมดาของการใช้ ผู้ทรงสิทธิเก็บกินไม่จำเป็นต้องใช้ค่าเสื่อมราคาหรือให้ค่าทดแทนในการใช้ทรัพย์นั้น
-ผู้ทรงสิทธิสามารถโอนทรัพย์สินนั้นให้แก่บุคคลภายนอกก็ได้
-ผู้ทรงสิทธิเก็บกินอาจร้องขอให้เจ้าของเข้าซ่อมแซมทรัพย์ที่เป็นการซ่อมแซมใหญ่ หากเจ้าของละเลย ผู้ทรงสิทธิเก็บกินอาจต้องซ่อมแซมเอง แต่ไม่ตัดสิทธิของผู้ทรงที่จะเรียกเงินที่ซ่อมแซมไปที่ตนได้ออกให้จากเจ้าของทรัพย์
-ค่าใช้จ่ายทั่วไปที่เกิดขึ้นมากกว่าปกตินั้น เจ้าของจะต้องเป็นผู้ออก
หน้าที่ของผู้ทรงสิทธิ
-ผู้ทรงสิทธิมีอำนาจจัดการทรัพย์สิน มีสิทธิครอบครอง ใช้ และถือเอาซึ่งประโยชน์แห่งทรัพย์สินนั้น
-ผู้ทรงสิทธิเก็บกินต้องส่งมอบทรัพย์สินคืนแก่เจ้าของ เมื่อสิทธิเก็บกินนั้นสิ้นลง
-เมื่อทรัพย์สินนั้นสลายไป หรือเสื่อมราคาลง อันเกิดจากความผิดของผู้ทรงสิทธิ ผู้ทรงสิทธิเก็บกินจะต้องรับผิดต่อผู้เป็นเจ้าของ
-ผู้ทรงสิทธิต้องทำให้ทรัพย์สินกลับมีมาแทนอันเดิม หากตนได้ใช้สิทธิเก็บกินไปแบบสิ้นเปลืองโดยไม่ปกติ ซึ่งก่อให้เกิดความเสียหายแก่ตัวทรัพย์หรือผู้เป็นเจ้าของ
-ผู้ทรงสิทธิต้องรักษาทรัพย์สินเสมอกับที่วิญญูชนพึงรักษาทรัพย์สินของตนเอง เมื่อผู้ทรงสิทธิได้ใช้ทรัพย์สินแล้ว ก็จะต้องดูแลรักษาในระดับที่เสมือนว่าทรัพย์สินนั้นเป็นของตนเอง
-หากเจ้าของร้องขอ ให้ผู้ทรงสิทธิหาประกันให้อันเนื่องมาจากการที่ผู้ทรงสิทธิใช้สิทธิโดยมิชอบ อันทำให้ทรัพย์สินนั้นตกอยู่ในภยันตราย เจ้าของก็มีสิทธิขอให้หาประกันมาได้ แต่หากผู้ทรงสิทธิยังละเลยไม่หาประกันมาให้ภายในระยะเวลาอันสมควรแล้วนั้น ผู้เป็นเจ้าของอาจร้องขอให้ศาลตั้งผู้รักษาทรัพย์สินเพื่อจัดการทรัพย์สินแทนผู้ทรงสิทธิก็ได้
-ผู้ทรงสิทธิเก็บกินจะต้องดูแลรักษาทรัพย์ให้เหมือนเดิม กับทั้งจะต้องซ่อมแซมอันเป็นการเล็กน้อยด้วย
-ผู้ทรงสิทธิเก็บกินจะต้องออกค่าใช้จ่ายในการจัดการทรัพย์สิน รวมถึงเสียภาษีอากร
-ผู้ทรงสิทธิเก็บกินจะต้องเอาทรัพย์สินนั้นประกันวินาศภัยไว้เพื่อประโยชน์แก่เจ้าของด้วย โดยผู้ทรงจะต้องเป็นผู้เสียเบี้ยประกันระหว่างที่ตนยังมีสิทธิอยู่
ความรับผิดของผู้ทรงสิทธิ
คดีเกี่ยวกับสิทธิเก็บกินในระหว่างเจ้าของทรัพย์สินกับผู้ทรงสิทธิเก็บกิน หรือผู้รับโอนนั้น ห้ามมิให้ฟ้องเมื่อเกิน 1 ปีนับแต่วันสิทธิเก็บกินสิ้นสุดลง
เหนือสิ่งอื่นใด หากต้องเปลี่ยนแปลงหรือแก้ไขในเรื่องของข้อรับผิด สิทธิหรือหน้าที่ สามารถเปลี่ยนแปลงได้โดยการทำข้อตกลงหรือข้อสัญญายกเว้นไว้ได้ หากข้อตกลงไม่ขัดต่อความสงบเรียบร้อยหรือศีลธรรมอันดีของประชาชน
Wednesday, July 8, 2009
Prenuptial Agreements in Thailand
What to know about how to make a Thai prenup
A prenuptial agreement is a document, a legal contract, that spouses sign before entering a marriage. It's also called an antenuptial or premarital agreement. The opposite is a postnuptial contract, which is a contract made between husband and wife after their marriage.
Prenuptial agreements provide a financial plan which can be managed through the course of marriage or upon the break-up of the marriage (example: divorce). For people with substantial assets and properties and wish to control the division of the assets upon divorce, this legal document is very useful.
Under Thai law, prenuptial and a postnuptial agreements are 2 types of agreements that can be made in relation of the assets between a husband and a wife.
A Thai prenuptial agreement is an agreement concerning of the assets between a husband and a wife made and governed by Thai law only. Thai Law is limiting prenuptial agreements and you must follow Thai rules in order to have a valid contract. A valid and enforceable Thai prenuptial agreement requires by Law that:
-It needs to be in writing on the same date of marriage registration, or;
-It has to be a written agreement signed by both parties.
-Two witnesses are required.
The agreement should be attached with the marriage certificate where the marriage is registered.
A "Buddha marriage" is not considered a legal marriage in Thailand. A legal marriage is a public act, it is official and registered at a local office. Because a marriage is a public act, the reason why we must register prenuptial agreements in Thailand is to announce to the third parties about the how the relationship of the spouses will be governed.
A Thai prenuptial agreement is concerning only the assets management of a husband and a wife during their marriage. The prenuptial agreement will be considered void, if; for example:
The prenuptial agreement specified that if a husband goes out with other lady, a wife can file a divorce. This clause is considered void because it is an agreement contrary to public order or good morals according to section 1465 paragraph 2 and section 150 of the Thai Commercial and
Civil Code.
A male who used to pay alimony to his mother every month before marriage. If the prenuptial agreement specified that all his salary will be given to his wife even his mother’s alimony. It is considered that void because it is an agreement contrary to public or good morals.
In addition, if the clause specified that it is governed by foreign law, it is considered void. In contrary, it specified that in case that a husband and a wife live separately, all assets acquired during separation are considered private property. Even though this clause is from the provisions of California State, it shall be valid.
The agreement is unenforceable if specified that the debt of a couple; for example, the education’s debt will be personal debt of a husband or the debt arising from business of both will be personal debt of wife.The altered or cancelled of prenuptial agreement must apply to the court for authorization in order to protect their interest, influences over the other party or force to alter or cancel the prenuptial agreement.In case of a minor wishing to get married and make a prenuptial agreement, a minor must get consent from parents, adoptive parent or legal representative of marriage and make an agreement. (Majority is 20 years-old in Thailand).
If you need a Law firm to draft you a prenuptial agreement, you can ask for a quote by sending an email to Isaan Lawyers.
Related Law
Commercial and Civil Code of Thailand:
Section 1465 Where the husband and wife have not, previous to their marriage, concluded a special agreement concerning their properties, the relations between them as regards their properties shall be governed by the provisions of this chapter.
Section 1466 The prenuptial agreement is void if not entered with the Marriage Register at the time of marriage registration terms of the prenuptial; or if not made in writing and signed by both parties and by at least two witnesses and entered with the Marriage Register at the time of marriage registration stating that the prenuptial is there to annexed.
Section 1467 After marriage the prenuptial agreement cannot be altered except by authorization of the court. When there is final order of the court to effect the alteration of cancellation of the prenuptial agreement, the court shall notify the Marriage Registrar of the matter in order to have it entered with the Marriage Register.
Section 1468 Clauses in the prenuptial agreement shall have no effect as regards the rights of third persons acting in good faith irrespective of whether they be altered or cancelled by the order of the Court.
A Conflict of Laws Act:
Section 22 As regards the property of husband and wife, if there is no ante-nuptial agreement, the law of nationality shall govern. If the husband and the wife have different nationalities, the property of husband and wife shall be governed by the law of nationality of the husband. However, as regards immovable property, the law of the place where such property is situated shall govern.
Section 23 The effects of marriage as governed by the two foregoing sections shall not be affected if, after marriage, either or both spouses acquire a nationality different from the nationality possessed or acquired at the time of marriage.
Section 24 As regards the property of husband and wife, if an ante-nuptial agreement is made, the capacity for making such agreement shall be governed by the law of nationality of each party.
Section 25 If the parties have the same nationality, the essential elements and effects of an ante-nuptial agreement shall be governed by the law of common nationality of the parties. If they have different nationalities, such essential elements and effects shall be governed by the law under which the parties intended or may be presumed to have intended to submit themselves; in the absence of such intention, the law of the first matrimonial domicile shall govern. However, as regards immovable property, the law of the place where such property is situated shall govern.
You will find more information about prenuptial agreements in Thailand at http://www.thailawonline.com/en/thailand/prenuptial-agreements
A prenuptial agreement is a document, a legal contract, that spouses sign before entering a marriage. It's also called an antenuptial or premarital agreement. The opposite is a postnuptial contract, which is a contract made between husband and wife after their marriage.
Prenuptial agreements provide a financial plan which can be managed through the course of marriage or upon the break-up of the marriage (example: divorce). For people with substantial assets and properties and wish to control the division of the assets upon divorce, this legal document is very useful.
Under Thai law, prenuptial and a postnuptial agreements are 2 types of agreements that can be made in relation of the assets between a husband and a wife.
A Thai prenuptial agreement is an agreement concerning of the assets between a husband and a wife made and governed by Thai law only. Thai Law is limiting prenuptial agreements and you must follow Thai rules in order to have a valid contract. A valid and enforceable Thai prenuptial agreement requires by Law that:
-It needs to be in writing on the same date of marriage registration, or;
-It has to be a written agreement signed by both parties.
-Two witnesses are required.
The agreement should be attached with the marriage certificate where the marriage is registered.
A "Buddha marriage" is not considered a legal marriage in Thailand. A legal marriage is a public act, it is official and registered at a local office. Because a marriage is a public act, the reason why we must register prenuptial agreements in Thailand is to announce to the third parties about the how the relationship of the spouses will be governed.
A Thai prenuptial agreement is concerning only the assets management of a husband and a wife during their marriage. The prenuptial agreement will be considered void, if; for example:
The prenuptial agreement specified that if a husband goes out with other lady, a wife can file a divorce. This clause is considered void because it is an agreement contrary to public order or good morals according to section 1465 paragraph 2 and section 150 of the Thai Commercial and
Civil Code.
A male who used to pay alimony to his mother every month before marriage. If the prenuptial agreement specified that all his salary will be given to his wife even his mother’s alimony. It is considered that void because it is an agreement contrary to public or good morals.
In addition, if the clause specified that it is governed by foreign law, it is considered void. In contrary, it specified that in case that a husband and a wife live separately, all assets acquired during separation are considered private property. Even though this clause is from the provisions of California State, it shall be valid.
The agreement is unenforceable if specified that the debt of a couple; for example, the education’s debt will be personal debt of a husband or the debt arising from business of both will be personal debt of wife.The altered or cancelled of prenuptial agreement must apply to the court for authorization in order to protect their interest, influences over the other party or force to alter or cancel the prenuptial agreement.In case of a minor wishing to get married and make a prenuptial agreement, a minor must get consent from parents, adoptive parent or legal representative of marriage and make an agreement. (Majority is 20 years-old in Thailand).
If you need a Law firm to draft you a prenuptial agreement, you can ask for a quote by sending an email to Isaan Lawyers.
Related Law
Commercial and Civil Code of Thailand:
Section 1465 Where the husband and wife have not, previous to their marriage, concluded a special agreement concerning their properties, the relations between them as regards their properties shall be governed by the provisions of this chapter.
Section 1466 The prenuptial agreement is void if not entered with the Marriage Register at the time of marriage registration terms of the prenuptial; or if not made in writing and signed by both parties and by at least two witnesses and entered with the Marriage Register at the time of marriage registration stating that the prenuptial is there to annexed.
Section 1467 After marriage the prenuptial agreement cannot be altered except by authorization of the court. When there is final order of the court to effect the alteration of cancellation of the prenuptial agreement, the court shall notify the Marriage Registrar of the matter in order to have it entered with the Marriage Register.
Section 1468 Clauses in the prenuptial agreement shall have no effect as regards the rights of third persons acting in good faith irrespective of whether they be altered or cancelled by the order of the Court.
A Conflict of Laws Act:
Section 22 As regards the property of husband and wife, if there is no ante-nuptial agreement, the law of nationality shall govern. If the husband and the wife have different nationalities, the property of husband and wife shall be governed by the law of nationality of the husband. However, as regards immovable property, the law of the place where such property is situated shall govern.
Section 23 The effects of marriage as governed by the two foregoing sections shall not be affected if, after marriage, either or both spouses acquire a nationality different from the nationality possessed or acquired at the time of marriage.
Section 24 As regards the property of husband and wife, if an ante-nuptial agreement is made, the capacity for making such agreement shall be governed by the law of nationality of each party.
Section 25 If the parties have the same nationality, the essential elements and effects of an ante-nuptial agreement shall be governed by the law of common nationality of the parties. If they have different nationalities, such essential elements and effects shall be governed by the law under which the parties intended or may be presumed to have intended to submit themselves; in the absence of such intention, the law of the first matrimonial domicile shall govern. However, as regards immovable property, the law of the place where such property is situated shall govern.
You will find more information about prenuptial agreements in Thailand at http://www.thailawonline.com/en/thailand/prenuptial-agreements
Saturday, June 6, 2009
Divorcing in Thailand
These days, about fifty pourcent of marriages ends with a divorce. Let's have a look about divorce in Thailand.
Under Thai law, there are 3 reasons to terminate of marriage. According to section 1501 of the Commercial and Civil Code of Thailand (CCCT), they are;
-Death
-Divorce
-Cancellation of the marriage by the Court
We all know why death ends a divorce. A cancellation by the Court is rare. It normally has a retroactive effect, meaning the same as if the marriage never happened. In these rare cases, one spouse can, for example, plead that he/she wouldn’t have married this person if she would have known certain facts, or that the marriage is void because of the way it was done (ex: someone under the legal age).
This article wants to focus on the other way to terminate a marriage under Thai Law: with a divorce.
B) DIVORCE First, we must say that under Thai law, there are no differences between foreigners and Thais. They are treated equally. But for certain aspects of property, or because they might need to translate some documents, it can be a little bit more complicated. Again, to divorce in Thailand, your marriage must be recognized under Thai Laws. In Thailand, there are 2 ways to divorce:
1. AN UNCONTESTED DIVORCE IN THAILAND (making an agreement between spouses)
If the husband and wife wish to terminate their marriage, Thai law allow couples to divorce without any reason because a marriage is civil contract. Therefore, by consent, the spouses can modify and cancel their contract. If both parties agree to terminate a marriage (or a contract), they may do so but will have to follow the procedure. Many civil law countries accept these uncontested divorces. On the opposite, Common law countries, such as England, USA or Australia, do not accept an uncontested divorce and normally need to request a court order.
The procedure Divorce effect by mutual consent must be made in writing and certified by the signature of two witnesses according to section 1514 of Civil and Commercial Code. A divorce agreement can be made at the district office or in a law firm. There is no format required about this agreement but the important thing is both parties understand and agree to make a divorce. This is why a bilingual agreement can be important for a Thai-Farang couple. Under Thai law, you shoud have at least 2 witnesses to sign the divorce agreement. Apparently there is no mention that the 2 witnesses have to be present at the same time but witnesses have to acknowledge who and what they are signing for (s.417/2494 Mrs Pong Pensara, plaintiff and Mr Nueng Satarat, Defendants). Although there are some witnesses acknowledge about divorce agreement but it’s only 1 witness signed for, it shall be deemed that divorce agreement is not completed (Supreme Court 1639/2522, Dr Wisut Tansirimongkol vs Oranut Tansirimongkol). Eventhough both parties has made a divorce agreement with 2 witnesses, it will not take effect if it is not register it at district office (Supreme Court 215/2519 Mr Suthep Pomasa vs Mrs Rien Pomasa)
The effects Like we saw, a divorce by mutual consent shall be registered. Upon consent and signing their divorce agreement with 2 witnesses, a husband and a wife need to register their divorce at district office in order to be legal according to section 1515 of Civil and Commercial Code.In case that both parties has signed their divorce agreement but one party doesn’t register his/her divorce, another party shall be entitle to enforce it by a court order (Supreme Court 1291/2500 Mrs Hieng Sae-ton vs Mr Hew Sae-jiew)
What should be included in a divorce agreement If both parties registered their marriage at district office, both parties needs to agree over the child custody, the separation of the marital assets and any other thing they might want to include in their agreement (ex: Alimony). The officer at the registration office will note the divorce agreement concerning the financial aspects and the situation of the child.
2. A CONTESTED DIVORCE IN THAILAND (going to the Court)
If both parties can’t agree on their divorce, one party needs to file a petition to the court. But to do so, you must have a cause, or what is normally called "a ground". The burden of proof will be on the person requesting the divorce and she/he will have to appear in Court and prove his/her motivation for asking a divorce. In Thailand, there are several grounds for divorce. For example, they include:
-The husband has given maintenance to or honored such other woman as his wife (Section 1516 (1) CCCT)
-The wife has committed adultery (Section 1516 (1) CCCT)
-One spouse is guilty of misconduct (criminal or otherwise) (Section 1516 (2)CCCT)
-One spouse has caused serious harm or torture physically or mentally the other, or has seriously insulted the other or his or her descendants (Section 1516 (3) CCCT)
-One spouse has deserted the other for more than one year (Section 1615 (4) CCCT)
-One spouse has been sentenced by a final judgment of the Court and has been imprisoned for more than one year if the offence committed is done without any participation, consent or in the knowledge of the other, and the cohabitation as husband and wife will cause the other party to sustain excessive injury or trouble (Section 1516 (4/1) CCCT)
-The husband and wife voluntarily live separately for more than 3 years (Section 1516 (4/2)
-One spouse has been adjudged to have disappeared, or has left the domicile for more than 3 years and it’s uncertain if she or he is alive or dead (Section 1516 (5) CCCT)
-Lack of marital support (Section 1516 (6) CCCT)
-One spouse has been an insane person for more than 3 years continuously and such insanity is hardly curable (Section 1516 (7) CCCT) · One spouse has broken the bond of good behavior (Section 1516 (8) CCCT)
-One spouse is suffering from a communicable and dangerous desease which is incurable and may cause injury to the other (Section 1516 (9) CCCT)
-One spouse has a physical disability so as to be unable to permanently cohabitate as husband and wife. (Section 1516 (10) CCCT)
The procedure You must file a petition to the Court. If you claim for some money to separate the common asset, a deposit must be made to the Court. It’s normally 2% of the value claimed. For example, if you bought a house while being married, or a car, and this is under “common property” (Sin Somros) for a value of 2 million baht, you are entitled to claim 1 million baht. So, you will have to pay 20,000 baht as deposit to the Court. If you win your case, the judge can order the other party to pay you back this deposit. If you have children together, you will probably go at the juvenile section first. They will make a kind report that will be used for the Court. Then, in Court, for the first appearances, it’s normally a negotiation session. If parties can’t agree, a trial will be ordered. If the defendant doesn’t show, the only evidence examined will be the one of the plaintiff. If you don’t know where a party lives or is, a divorce ex parte can also be done under certain circumstances and after an announcement has been made. For the trial, the plaintiff must be present and has the burden of proof. Depending where the proceedings are, a divorce can be obtained in Court between 3 months to 1 year. This excludes appeals and special circumstances. Again, this is an approximation. Divorces are done in the family Court division.
Divorcing abroad of a Thai marriage
The Conflict of Law Act B.E.year 2481 enacts the following clauses about divorces:
Section 26 “A divorce by mutual consent shall be valid if it is permitted by the law of nationality of husband and wife”
Section 27 “A divorce cannot be granted by the Siamese Court unless it is permitted by the law of nationality of husband and wife.” No matter where a mutual consent take place, it is difficult to the other person will know.
The Supreme Court in decision s.5887/2533, whereas one party is Thai and another party is Indian stated that “A mutual consent divorce between plaintiff and defendant shall be valid between two of them only. It cannot be set up against their persons by acting in good faith except the parties who registered their divorce according to section 1515 of Civil and Commercial Code”
The spouse who register 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.The spouse has to be present at the embassy of spouse’s domicile. The Spouse declares his/her intention to divorce by written document concerning about marital property and child custody. Both parties have to sign it the presence of the registrar and 2 witnesses. In case that one party cannot be present at the same time, they can agree which party should submit the divorce first and another party will submit later. The divorce made in abroad can be registered at a district office in Thailand.
First you need to certify paper from Ministry of Foreign Affair of divorce country and translate into Thai and certify by Thai embassy in aboard. In the case that someone is dispute over divorce in aboard, the court will step in either certify or refuse of divorce.
The separation of asset in case of divorce in Thailand
Upon termination of the marriage, both husband and wife has to divide properties which consist of private property (called "Sin Suan Tua" in Thai) and common property (called "Sin Somros" in Thai).
Section 1470 Properties of husband and wife except in so far as they are set aside as Sin Suan Tua, are Sin Somros.
Section 1471 Sin Suan Tua consists of:(1) property belonging to either spouse before marriage;(2) property for personal use, dress or ornament suitable for station in life, or tools necessary for carrying on the profession of either spouse;(3) property acquired by either spouse during marriage through a will or gift;(4) Khongman
Section 1472 As regards the Sin Suan Tua, if it has been exchanged to other property, other property has been bought or money has been acquired from selling it, such other property or money, such other property or money shall be Sin Suan Tua. Where the Sin Suan Tua has been totally or partly destroyed but replaced by other property or money, such other property or money shall be Sin Suan Tua.
Section 1474 Sin Somros consists of(1) property acquired during marriage;(2) property acquired by either spouse during marriage through a will or gift made in writing if it is declared by such will or document of gift to be Sin Somros;(3) fruits of Sin Suan Tua.In case of doubt as to whether a property is Sin Somros or not it shall be presumed to be Sin Somros. The rule,regarding division of property, are Sin Suan Tua remains the property of the owner and Sin Somros shall divide equally.
Section 1533 Upon divorce, the Sin Somros shall be divided equally between man and woman. In some cases it might not divide equally if one spouse disposed Sin Somros as following;
For his or her exclusive beniefit. Example; One spouse sells Sin Somros and retain all money by himself or herself or use it in own benefit.
One spouse has made disposal with an intention to cause injury to the other. Example; One spouse sells Sin Somros to his or her own relative for very low price.
One spouse has made disposal without the consent of the other. Example; Sin Somros is the land namely sole husband and later husband sells it without consent of wife.
One spouse has willfully destroyed it. Example; Wife is angry with husband and then sell her Sin Somros.
In order to divide such a Sin Somros, it shall be deemed that all properties are in full and complete. If the share of the Sin SOmros that the other will receive is not complete to what he or she should have received, the party at fault is required to make up for the arrears from his or her share of the Sin Somros or his or her Sin Suan Tua. The calculation of period of marriage, regarding to dividen property, are as follow;
If it’s uncontested divorce, it shall divide for what assets they own while registering divorce.
In case of divorce by judgment of the Court, it shall divide for what assets they own on filing petition date.
Section 1532 After divorce, the property of the husband and wife shall be subject to liquidation.
But as between the spouses,
(a) in case of divorce by mutual consent, the liquidation shall apply to the property of the husband and wife as it was on the date of registration of divorce;
(b) in case of divorce by judgment, the liquidation shall apply to the property of the husband and wife as it was on the day when the action for divorce was entered in Court.
Marriage with a foreigner. In case that husband and wife have different nationalities, the assets of wife shall be governed by the law of the husband’s nationality except property according to Conflict of Law ,section 22 designate that if there is no prenuptial agreement, the relationship between husband and wife shall be governed by nationality law.If husband and wife have different nationalities, all common property shall governed by the law of husband’s nationality.However, the immovable property shall comply with the law where the property is situated; such as house and land. For example; Thai wife has a dispute over the land with a foreign husband, Thai law shall govern. In case of termination of marriage by divorce, Thai law designates that assets shall be divided equally.
You will find more information about how to divorce in Thailand at http://www.thailawonline.com/en/thailand/divorce-in-thailand
Under Thai law, there are 3 reasons to terminate of marriage. According to section 1501 of the Commercial and Civil Code of Thailand (CCCT), they are;
-Death
-Divorce
-Cancellation of the marriage by the Court
We all know why death ends a divorce. A cancellation by the Court is rare. It normally has a retroactive effect, meaning the same as if the marriage never happened. In these rare cases, one spouse can, for example, plead that he/she wouldn’t have married this person if she would have known certain facts, or that the marriage is void because of the way it was done (ex: someone under the legal age).
This article wants to focus on the other way to terminate a marriage under Thai Law: with a divorce.
B) DIVORCE First, we must say that under Thai law, there are no differences between foreigners and Thais. They are treated equally. But for certain aspects of property, or because they might need to translate some documents, it can be a little bit more complicated. Again, to divorce in Thailand, your marriage must be recognized under Thai Laws. In Thailand, there are 2 ways to divorce:
1. AN UNCONTESTED DIVORCE IN THAILAND (making an agreement between spouses)
If the husband and wife wish to terminate their marriage, Thai law allow couples to divorce without any reason because a marriage is civil contract. Therefore, by consent, the spouses can modify and cancel their contract. If both parties agree to terminate a marriage (or a contract), they may do so but will have to follow the procedure. Many civil law countries accept these uncontested divorces. On the opposite, Common law countries, such as England, USA or Australia, do not accept an uncontested divorce and normally need to request a court order.
The procedure Divorce effect by mutual consent must be made in writing and certified by the signature of two witnesses according to section 1514 of Civil and Commercial Code. A divorce agreement can be made at the district office or in a law firm. There is no format required about this agreement but the important thing is both parties understand and agree to make a divorce. This is why a bilingual agreement can be important for a Thai-Farang couple. Under Thai law, you shoud have at least 2 witnesses to sign the divorce agreement. Apparently there is no mention that the 2 witnesses have to be present at the same time but witnesses have to acknowledge who and what they are signing for (s.417/2494 Mrs Pong Pensara, plaintiff and Mr Nueng Satarat, Defendants). Although there are some witnesses acknowledge about divorce agreement but it’s only 1 witness signed for, it shall be deemed that divorce agreement is not completed (Supreme Court 1639/2522, Dr Wisut Tansirimongkol vs Oranut Tansirimongkol). Eventhough both parties has made a divorce agreement with 2 witnesses, it will not take effect if it is not register it at district office (Supreme Court 215/2519 Mr Suthep Pomasa vs Mrs Rien Pomasa)
The effects Like we saw, a divorce by mutual consent shall be registered. Upon consent and signing their divorce agreement with 2 witnesses, a husband and a wife need to register their divorce at district office in order to be legal according to section 1515 of Civil and Commercial Code.In case that both parties has signed their divorce agreement but one party doesn’t register his/her divorce, another party shall be entitle to enforce it by a court order (Supreme Court 1291/2500 Mrs Hieng Sae-ton vs Mr Hew Sae-jiew)
What should be included in a divorce agreement If both parties registered their marriage at district office, both parties needs to agree over the child custody, the separation of the marital assets and any other thing they might want to include in their agreement (ex: Alimony). The officer at the registration office will note the divorce agreement concerning the financial aspects and the situation of the child.
2. A CONTESTED DIVORCE IN THAILAND (going to the Court)
If both parties can’t agree on their divorce, one party needs to file a petition to the court. But to do so, you must have a cause, or what is normally called "a ground". The burden of proof will be on the person requesting the divorce and she/he will have to appear in Court and prove his/her motivation for asking a divorce. In Thailand, there are several grounds for divorce. For example, they include:
-The husband has given maintenance to or honored such other woman as his wife (Section 1516 (1) CCCT)
-The wife has committed adultery (Section 1516 (1) CCCT)
-One spouse is guilty of misconduct (criminal or otherwise) (Section 1516 (2)CCCT)
-One spouse has caused serious harm or torture physically or mentally the other, or has seriously insulted the other or his or her descendants (Section 1516 (3) CCCT)
-One spouse has deserted the other for more than one year (Section 1615 (4) CCCT)
-One spouse has been sentenced by a final judgment of the Court and has been imprisoned for more than one year if the offence committed is done without any participation, consent or in the knowledge of the other, and the cohabitation as husband and wife will cause the other party to sustain excessive injury or trouble (Section 1516 (4/1) CCCT)
-The husband and wife voluntarily live separately for more than 3 years (Section 1516 (4/2)
-One spouse has been adjudged to have disappeared, or has left the domicile for more than 3 years and it’s uncertain if she or he is alive or dead (Section 1516 (5) CCCT)
-Lack of marital support (Section 1516 (6) CCCT)
-One spouse has been an insane person for more than 3 years continuously and such insanity is hardly curable (Section 1516 (7) CCCT) · One spouse has broken the bond of good behavior (Section 1516 (8) CCCT)
-One spouse is suffering from a communicable and dangerous desease which is incurable and may cause injury to the other (Section 1516 (9) CCCT)
-One spouse has a physical disability so as to be unable to permanently cohabitate as husband and wife. (Section 1516 (10) CCCT)
The procedure You must file a petition to the Court. If you claim for some money to separate the common asset, a deposit must be made to the Court. It’s normally 2% of the value claimed. For example, if you bought a house while being married, or a car, and this is under “common property” (Sin Somros) for a value of 2 million baht, you are entitled to claim 1 million baht. So, you will have to pay 20,000 baht as deposit to the Court. If you win your case, the judge can order the other party to pay you back this deposit. If you have children together, you will probably go at the juvenile section first. They will make a kind report that will be used for the Court. Then, in Court, for the first appearances, it’s normally a negotiation session. If parties can’t agree, a trial will be ordered. If the defendant doesn’t show, the only evidence examined will be the one of the plaintiff. If you don’t know where a party lives or is, a divorce ex parte can also be done under certain circumstances and after an announcement has been made. For the trial, the plaintiff must be present and has the burden of proof. Depending where the proceedings are, a divorce can be obtained in Court between 3 months to 1 year. This excludes appeals and special circumstances. Again, this is an approximation. Divorces are done in the family Court division.
Divorcing abroad of a Thai marriage
The Conflict of Law Act B.E.year 2481 enacts the following clauses about divorces:
Section 26 “A divorce by mutual consent shall be valid if it is permitted by the law of nationality of husband and wife”
Section 27 “A divorce cannot be granted by the Siamese Court unless it is permitted by the law of nationality of husband and wife.” No matter where a mutual consent take place, it is difficult to the other person will know.
The Supreme Court in decision s.5887/2533, whereas one party is Thai and another party is Indian stated that “A mutual consent divorce between plaintiff and defendant shall be valid between two of them only. It cannot be set up against their persons by acting in good faith except the parties who registered their divorce according to section 1515 of Civil and Commercial Code”
The spouse who register 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.The spouse has to be present at the embassy of spouse’s domicile. The Spouse declares his/her intention to divorce by written document concerning about marital property and child custody. Both parties have to sign it the presence of the registrar and 2 witnesses. In case that one party cannot be present at the same time, they can agree which party should submit the divorce first and another party will submit later. The divorce made in abroad can be registered at a district office in Thailand.
First you need to certify paper from Ministry of Foreign Affair of divorce country and translate into Thai and certify by Thai embassy in aboard. In the case that someone is dispute over divorce in aboard, the court will step in either certify or refuse of divorce.
The separation of asset in case of divorce in Thailand
Upon termination of the marriage, both husband and wife has to divide properties which consist of private property (called "Sin Suan Tua" in Thai) and common property (called "Sin Somros" in Thai).
Section 1470 Properties of husband and wife except in so far as they are set aside as Sin Suan Tua, are Sin Somros.
Section 1471 Sin Suan Tua consists of:(1) property belonging to either spouse before marriage;(2) property for personal use, dress or ornament suitable for station in life, or tools necessary for carrying on the profession of either spouse;(3) property acquired by either spouse during marriage through a will or gift;(4) Khongman
Section 1472 As regards the Sin Suan Tua, if it has been exchanged to other property, other property has been bought or money has been acquired from selling it, such other property or money, such other property or money shall be Sin Suan Tua. Where the Sin Suan Tua has been totally or partly destroyed but replaced by other property or money, such other property or money shall be Sin Suan Tua.
Section 1474 Sin Somros consists of(1) property acquired during marriage;(2) property acquired by either spouse during marriage through a will or gift made in writing if it is declared by such will or document of gift to be Sin Somros;(3) fruits of Sin Suan Tua.In case of doubt as to whether a property is Sin Somros or not it shall be presumed to be Sin Somros. The rule,regarding division of property, are Sin Suan Tua remains the property of the owner and Sin Somros shall divide equally.
Section 1533 Upon divorce, the Sin Somros shall be divided equally between man and woman. In some cases it might not divide equally if one spouse disposed Sin Somros as following;
For his or her exclusive beniefit. Example; One spouse sells Sin Somros and retain all money by himself or herself or use it in own benefit.
One spouse has made disposal with an intention to cause injury to the other. Example; One spouse sells Sin Somros to his or her own relative for very low price.
One spouse has made disposal without the consent of the other. Example; Sin Somros is the land namely sole husband and later husband sells it without consent of wife.
One spouse has willfully destroyed it. Example; Wife is angry with husband and then sell her Sin Somros.
In order to divide such a Sin Somros, it shall be deemed that all properties are in full and complete. If the share of the Sin SOmros that the other will receive is not complete to what he or she should have received, the party at fault is required to make up for the arrears from his or her share of the Sin Somros or his or her Sin Suan Tua. The calculation of period of marriage, regarding to dividen property, are as follow;
If it’s uncontested divorce, it shall divide for what assets they own while registering divorce.
In case of divorce by judgment of the Court, it shall divide for what assets they own on filing petition date.
Section 1532 After divorce, the property of the husband and wife shall be subject to liquidation.
But as between the spouses,
(a) in case of divorce by mutual consent, the liquidation shall apply to the property of the husband and wife as it was on the date of registration of divorce;
(b) in case of divorce by judgment, the liquidation shall apply to the property of the husband and wife as it was on the day when the action for divorce was entered in Court.
Marriage with a foreigner. In case that husband and wife have different nationalities, the assets of wife shall be governed by the law of the husband’s nationality except property according to Conflict of Law ,section 22 designate that if there is no prenuptial agreement, the relationship between husband and wife shall be governed by nationality law.If husband and wife have different nationalities, all common property shall governed by the law of husband’s nationality.However, the immovable property shall comply with the law where the property is situated; such as house and land. For example; Thai wife has a dispute over the land with a foreign husband, Thai law shall govern. In case of termination of marriage by divorce, Thai law designates that assets shall be divided equally.
You will find more information about how to divorce in Thailand at http://www.thailawonline.com/en/thailand/divorce-in-thailand
Subscribe to:
Posts (Atom)
