Family and Matrimonial Law in Thailand

A legal marriage is effected by registration at a local district office (Amphur). In the event one or more of the parties is a foreign national, the following is likely to be required by the local office for registration:

• A notarised affidavit confirming the foreign national’s eligibility to marry by the relevant consulate or embassy
  
• Passport copy certified by the relevant consulate or embassy
  
  In the event of any previous marriage(s), supporting documents proving that any and all prior marriages were ended by divorce, death or annulment
  
• Written permission from parents to marry if either party is under the age of 20 years
  
• Certified translations of all documents into Thai from a professional translation

Pre-nuptial agreements are recognised and enforceable providing they are consistent with Thai law and properly executed and registered at the time of marriage. Following marriage, pre-nuptial agreements can only be amended by an order of the court. It should also be noted that any agreements between spouses concluded during marriage (and a year following the dissolution of any marriage) can be avoided by either party as a matter of Thai law.

Consideration should be given by any foreign national to the effects of a Thai pre-nuptial agreement, particularly if there is any future potential for a divorce to be initiated in a foreign jurisdiction. Please contact us for more information on pre-nuptial agreements in an international context.

Divorce is effected either by mutual consent, which is an administrative procedure, or by order of the court.

Although it is generally a significantly more straightforward and cost-effective solution, divorce by mutual consent is available only in circumstances where a marriage was registered at a district office in Thailand and is only advisable where there are no issues in relation to child custody or the division of property. Consideration should also be given as to whether an administrative divorce will be recognised by courts or other administrative agencies in foreign jurisdictions.

In the event a divorce by order of the court is necessary, Thai law requires there to be grounds, which are broadly as follows:

• Adultery
  
• Misconduct causing shame, hatred or excessive injury
  
• Serious harm or torture to the body or mind of the other
  
• Serious insult to the other or their ascendants
  
• Desertion for more than a year
  
• Imprisonment for more than a year
  
• Separation for more than 3 years
  
• Disappearance for more than 3 years
  
• Failure to provide proper maintenance or support
  
• Incurable insanity for more than 3 years
  
• Breach of a bond of good behaviour
  
• A communicable and dangerous disease which is incurable and capable of causing harm to the other
  
• A physical disability so as to be permanently unable to cohabit as husband and wife

It is worth noting that the Conflict of Laws Act additionally permits divorce by consent in the context of court proceedings in the event it is permitted by the law of the parities’ common nationality. In addition, Thai courts will not grant a divorce in the event it is not permitted by the law of the parties’ common nationality.

The CCC provides for the division of assets into personal property and marital property upon divorce for the purposes of distribution.

Personal property is defined as follows:

• Property belonging to either spouse before marriage
• Property for personal use or items necessary for the performance of the person’s job or profession
• Property acquired by either spouse during the marriage by will or gift
• Engagement gifts

Marital property is defined as follows:

• Property acquired during marriage
• Property acquired by either spouse during marriage by will or gift made in writing, providing it is declared in writing that the property is marital property
• The fruits of personal property

Where there is doubt as to the status of any property, it is presumed to be marital property.

In the event Thai law is to be applied, the Code provides that marital property is equally divided between the parties upon divorce. Personal property is not divided, but the parties remain liable for common debts equally.

In the event a party has disposed of any part of the marital property for their exclusive benefit, or with an intention to injure the other party, or without lawfully required consent, that party will be required to compensate the other from their share of marital property or personal property.

Equally, if the grounds for divorce have arisen through the conduct of a party with the intention of making the other party’s situation so intolerable that divorce proceedings are issued, the aggrieved party is entitled to compensation in an amount determined by the court having regard to the circumstances. The payment may be in the form of a lump sum or by instalments.

Foreign nationals seeking to divorce in Thailand should be aware that the Conflict of Laws Act provides that, in the absence of a pre-nuptial agreement, issues concerning the division of property upon divorce are governed by the law of their common nationality. In the event they have different nationalities, they are governed by the law of the husband’s nationality. Issues concerning immovable property are governed by the law of the place in which the relevant property is located.

Thai courts are obliged by law to make custody determinations based upon the best interests of the child. In practice, this usually means the Observation and Protection Centre, a court established agency, will compile a report and make recommendations based upon a social worker’s evaluation of the parents and the child.

In relation to maintenance, the court has a broad discretion to make orders as to who will contribute to the maintenance of any children and the level of that contribution.

Conclusion

The family law space in Thailand can be difficult and challenging to navigate, particularly where there are foreign nationals involved and issues may extend to multiple jurisdictions.

We have a great deal of experience in providing strategic advice to clients in an international context. Please contact the LAFS family practice at info@lafs-legal.com if you need assistance with any of the following:

• Getting married in Thailand, including assistance with the necessary documentation if you are a foreign national
• The draft, execution and registration of pre-nuptial agreements, including advice on enforceability in Thai law and potential issues with enforceability in other jurisdictions
• Divorce, asset division and child custody and visitation issues, including (in conjunction with foreign counsel) providing advice on the advantages and disadvantages of issuing proceedings in different jurisdictions in any particular circumstances

Private investigation in relation to divorce issues and evidence gathering