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Lets look at the different perspectives in Thailand. Many forget that when you get married in community of property, this will also include your properties in your home country and not only in Thailand. You will need to speak to a prenuptial agreement lawyer in Thailand about your options. These are some of the things you will need to consider.
So the definition as well as the purpose of the prenuptial has to be considered. Likewise always take advice from a prenuptial lawyer in Thailand especially if you are an American as the State laws differ on these.
Firstly you will want to protect your assets. These include your assets before you got married as well as any business interest which you might have had. Likewise there are also savings as well as investments that you have before the marriage.
Secondly there is the issue on financial obligations. These issues include debt as well as joint expenses during the marriage. You will need to explain how this will be managed during the marriage.
Lastly there is the issues of the divorce itself. Will there be spousal support after the divorce and how the property will be divided. If you think that a divorce is unlikely then see the article on Thai divorce stats as a reminder that cross cultural marriages have a very high failure rate. All of these makes for an easier divorce as well as fewer disputes should it occur. You will need to register the prenuptial in Thailand as the time of your marriage registration.
There are a number of reasons for this especially for expats. Many expats in Pattaya tend to ask this question. It is a valid question considering that there are so many expats in Pattaya as w write this. Well lets look at the basics first.
Firstly as an expat you may have property at home in your home country. You want to ensure that those assets are protected under Thai law as well in the event of a divorce. The prenup will cover those assets as well as you investment that you might have abroad.
Secondly there are gaps in the legal systems when it comes to the prenuptial agreements. You will need to speak to our prenuptial lawyer about this so that all your assets can be managed under one legal system. Thailand has its own extensive laws about marital property as well a divorce in the country. If you are going to live in Thailand then this is essential.
Thirdly Thailand also has many customs and laws which will differ from the West. The first being the concepts of sin somrot (marital property) and sin suan tua (personal property). These might not align with the laws in your own home country.
Fourthly, should there be a divorce and return home. What then becomes difficult is the managing of any financial obligations in multiple jurisdictions. These can also be included in your agreement. Likewise should you co-own businesses you may also include these here. In any event, most issues can be resolved before they occur.
We will cover the legal framework in Thailand here so you can better understand the process as well as the legal system in Thailand. This is important especially those expats who live in Pattaya and might take the incorrect advice from other expats. Firstly we will need to take a look at the legal requirements for a prenuptial agreement to be valid in Thailand.
Mutual Consent
Firstly both parties have to consent to the prenup Thailand. There cant be deception or coercion with the singing of the agreement. This should be a fair and voluntary process and agreement. There have been instances in the UK where the prenuptial was discarded during a divorce for being unfair. Likewise the parties need to understand what it is that they are signing. Normally your fiancee will take the agreement to another law firm so that they can explain this to her. This law firm will then give a letter to state that it was explained to her. Should the divorce in Thailand occur she cannot say that she did not understand what she had signed.
Property Documentation
The prenuptial has to be written and not an oral agreement. There also has to be witnesses to the agreement. Likewise ensure that you have completed and documented the agreement correctly. As stated that unwritten agreements as well as the promises are not recognized by the courts in Thailand.
Registration at the District Office
The prenuptial agreement has to be registered ay the Amphur Office when you register the marriage. You will need to ensure that the prenuptial agreement is handed in and registered at the same time or together with the marriage application. Your marriage certificate will then be issued when both have been registered.
Legal Clarity
You will need to ensure that the the language is clear, precise, and unambiguous. Should you have a translated version then you will need to ensure that the translated document is also included and that you will choose which language will be the default of the agreement in the event of a dispute. Legal translation can go wrong. This is very rare that there is also a translated Thai to English translation.
Compliance with Public Policy
The prenuptial cannot include conditions or illegal terms. These include predetermined child custody or the waiving of spousal support in a divorce. These will not be accept by the courts should the divorce occur. You may not include conditions that are against the morals of society or contravene Thai laws.
Qualified Legal Assistance
You do not need the services of a Thai lawyer for drafting the agreement however it is advisable. These are complicated documents and as an expat your agreement will also need to comply with the laws of your own home country. Lastly also see where this will fit into the drafting of your last will and testament.
Your prenuptial as explained need to comply with the laws of Thailand. We have explained further as to what this entails to comply with the law as well as the process again in more detail below.
Thai Legal Standards
Your prenuptial agreement has to comply with Thai laws such as the Civil and Commercial Code. There are a number of sections on this website that you can read through. Any clauses that contradict the laws will be seen as null and void when it comes to the divorce.
Witnesses
The role of witnesses also confirms the validity that there was mutual agreement when it was signed. Even though this is might not be mandatory when you register the agreement it adds to the validity of the agreement that you have both signed. This as it shows that this agreement was not signed under duress, fraud, or misrepresentation
Choice of Governing Law
You have the ability to state which laws are applicable to your prenuptial agreement. This however will make the preputial more complicated. The reason for these clauses is that you might have property in your home country or abroad that you might also want to include and cover. You can view this as an international prenuptial agreement that will need an expat prenuptial agreement lawyer especially for the United States citizen. There are difference between the different states in the US.
Should there be a divorce or a dispute then the following will be considered.
Compliance with Registration Requirements: Any unregistered agreements are automatically invalid.
Equity and Fairness: Courts may assess whether the terms of the prenup are reasonable and fair to both parties.
Clarity of Terms: Likewise the use of ambiguous or vague clauses may be disregarded or interpreted by the court in a manner consistent with Thai law.
Asset Classification
You will note that in Thailand the property is divided into two categories.
• Personal Property (Sin Suan Tua):
These include assets that you have owned before the marriage. Likewise these include gifts or inheritances received during the marriage. The inheritance that was give to you and not as a couple. Likewise remains the sole property of the individual and is not subject to division in case of divorce.
• Marital Property (Sin Somrot):
These would include assets acquired during the course of the marriage. This is regardless of whose name they are registered under during the course of the marriage.
These assets will be subject to equitable division in case of divorce.
Likewise a well-drafted prenup should clearly identify personal and marital property to prevent disputes should a divorce occur in the future.
This is a very important past of the agreement. You will also note that many divorces in Thailand do occur because of gambling debts and other types of debt that where not joint debts for the common household. The agreement can specify how debts will be handled during and after the marriage.
For mixed-nationality couples, the prenup should address:
Foreign Assets: How are these assets located outside Thailand will be treated and where and what are they.
Multiple Jurisdictions: Ensure compliance with both Thai law and the laws of the foreign spouse’s home country to avoid conflicts.
Expatriates who own a business in Thailand may also use a prenup to protect their ownership. This is important if it is a joint venture and you need to consider your business partner as well. There have been instances where the business partner did not want someone’s ex-wife as a partner after a divorce. How will this business especially a JV be managed in the event of a divorce.
Couples can include provisions for reviewing or updating the prenup if circumstances change, such as the acquisition of significant assets or the birth of children.
This is a summary of the prenuptial agreements in Thailand. As an expat in Thailand especially in Pattaya and Bangkok. You might need to consider your options before you get married in Thailand.
