Firstly this is how to get divorced in Thailand and how this works. This translation again should not be seen as legally binding or used as legal advice or guidance. This text on this page has been provided for educational and comprehension purposes only and contains no legal authority.
We will assume no responsibility for any liabilities arising from the use and/or reference of this text. Speak to us online or via WhatsApp or application Line for proper legal advice. Finally, speak to our Thailand family lawyer if you do not fully comprehend family law in Thailand compares to your home country. You can also the other Chapters in the Civil and Commercial Code in the country. See also the law on child legitimation as well as community of property and marriage in Thailand.
A marriage can only be dissolved by death or divorce or by annulment by a court judgment.
Any voidable marriage will be dissolved upon annulment by court judgment.
The application to court for an annulment of marriage based on its voidability can only be made in the case where the spouse has violated the following being Section 1448, Section 1505, Section 1506, Section 1507 as well as Section 1509.
Any person with an interest can apply for an annulment where the marriage which is voidable due to violation of Section 1448. The parents or guardian who gave permission may not apply for an annulment of the marriage.
If there is no court ordered annulment of the marriage until the male and female have reached the required age as stipulated in Section 1448 this or the female becomes pregnant before reaching the required age as stipulated under Section 1448, their marriage shall be deemed to have been valid from the time of marriage.
The marriage concluded under mistaken identity of one of the spouses will be voidable.
There is a time limit as the annulment arising from mistaken identity will be extinguished after ninety days have elapsed from the date of marriage.
If there was fraud then the marriage is voidable. This only if the marriage would not have been concluded if there was no fraud.
The provision of paragraph one shall not apply in the case where such fraud is committed by a third party without the knowledge of the other spouse. (This is a very important condition)
Not that the application for an annulment will be expired after ninety days from the date that the fraud has been known or should have been known alternatively after one year since the marriage was concluded.
Where there has been duress the marriage is voidable if such a marriage otherwise would not have been concluded.
The annulment of the marriage as a result of the duress will end one year after the spouse under duress has been freed from such duress.
The marriage which is voidable as a result of the mistake of identity where a party has been defrauded or under was under duress, only the injured spouse who was mistaken or defrauded or under duress may apply for annulment of the marriage. (Note the conditions explained above)
If the person is a court adjudicated incompetent under Section 29 and wants to apply for an annulment then another person can apply on their behalf. If a person is an incompetent and has not been adjudicated by the courts as being one. The person making the application will apply for an annulment and together apply for the person to be adjudicated as an incompetent. If the courts adjudicate the application for incompetence to be dismissed, then the application for an annulment will also be dismissed. (Note that this is an important Section as dismissal as an incompetent, then the application for annulment will also be dismissed. This as a competent person can apply for the annulment on their own.)
If there was no permission for the marriage under Section 1454 then the marriage is voidable (This is also Section 1436 which is where a minor gets married in Thailand without permission)
Those who can give consent under Section 1454 can apply for an annulment of a voidable marriage due to a lack of consent under Section 1454.
This option of an annulment under this Section ends when the spouse reaches the age of twenty years of age or when the female become pregnant.
The prescription period for annulment of a marriage in this Section ends one year from the date of the marriage.
The date on which a marriage has been dissolved by a court judgment will be the date of the annulment. This however cannot asserted to the prejudice of the rights of any third parties that there might be who was acting in good faith unless the annulment of the marriage has been registered.
With an annulment of a marriage it will have the same effect of a divorce by judgment.
If the spouse sued for annulment of the marriage planned secretly and dishonestly in the cause of the voidability of the marriage, then such a spouse shall be liable to compensate for the damages to the person, reputation or property of the other spouse and Section 1525 will apply.
Also if the annulment of the marriage under paragraph one results in the other party becoming more destitute and having insufficient income out of his or her property or business which used to be carried out during the marriage, the sued spouse shall also be liable for living allowances as stipulated in Section 1526. (These are covered under damages during divorce on the main website. There is also an article on fraud in Thailand and its consequences. Read those as well as this Section of the Act.)
The divorce in Thailand can only be effected only by mutual consent or by a judgment from court. The divorce by mutual consent has to be in writing and require the signatures of at least two witnesses. (These are the divorce by agreement as well as those litigated divorces. See the main website for more on the two types of options for divorce in Thailand.)
When there is mutual consent for divorce it will only be valid when they have the divorce registered.
The grounds for divorce for a divorce will be as follows:
(1)* Where the husband or wife has provided or is providing maintenance or has honored another person as their wife or husband while still married. Where they have committed adultery or have had regular sexual intercourse with another person. Then the injured party can apply for a divorce.
(2) Where one party has committed misconduct, irrespective it is criminal or not, causing the other party:
(a) Where the other party is seriously disgraced;
(b) Which caused the other party to be insulted or hated for continuing to be the spouse of the person having committed the misconduct; or
(c) Where they suffer excessive trouble or damage. This accounting for the condition, status and circumstances of the cohabitation
(3) Where one party has harmed either physically, mentally abused or insulted the other or his or her ascendants. (Note that the word used in Thai are the ascendants. Most times in Thailand these are the parents.)
(4) This is where one party has willfully deserted the other for more than one year.
(4/1)*Where one spouse has been sentenced by the courts more than one year for the offence committed without the other knowing and the continuance of the conjugal relationship will cause excessive damage or trouble to the other party.
(4/2)* Where a couple have lived apart voluntarily for more than three years or by court order.
(5)* Where a person has been an adjudication of disappearance (court has ruled the person missing) or left their domicile or residence for more than three years. Nobody knows if this person is still alive then the other party can bring an action of divorce.
(6) Where one party has failed to provide proper assistance and maintenance to the other party or committed an act which is seriously detrimental to the conjugal relationship. This creates excessive problems with cohabitation.
(7) Where one spouse is of unsound mind for more than a period of three years. This condition is difficult to cure. This condition makes the cohabitation intolerable.
(8) This where there has been a breach of the good behavior bond.
(9) Where one party has a serious communicable disease which may cause injury to the other party and is chronic and incurable.
(10) Where one party has a physical condition that makes him or her unable to engage in sexual intercourse permanently.
In Section 1516 (1) and (2), if the other party consented or connived for this, then it cannot be used as a reason for divorce. (These tend to be in matters where one party had given consent to have a minor wife.)
With Section 1516 (10) the reason cannot be used if the party was the cause of the condition. (The one party created an accident which caused the other to be in that condition)
Where under Section 1516 (8), the court finds that the behavior of the party is insignificant or minor to the peaceful cohabitation.
The reason for divorce will be extinguished when the injured party has engaged in any act showing their forgiveness for the actions of the other.
If you wish to get divorced and your spouse is of unsound mind then you can apply to court to have this adjudicated under Section 28. If deemed appropriate, also apply to the court for an order under Section 1526 or Section 1530. (Note that you will need to make an application for divorce as well as an application to court for adjudicating your spouse for an unsound mind. If the spouse is adjudicated to be of sound mind then the application will be dismissed.
If the person is adjudicated an incompetent and the divorce has not occurred then the court will appoint a guardian under Section 1463 and dismiss the divorce application. The court will also consider a living allowance. If the court finds that the person should be deemed incompetent. They can still allow the divorce buy first appoint a guardian. If an incompetent spouse wishes to divorce the courts will take into consideration the condition of the spouse and may reject the divorce application.)
This is a very complex Section as the language and interpretation may be different. Take legal advice if you are getting divorced and you consider your spouse to be an incompetent. There is a difference in this Section between (is incompetent) and (should be considered incompetent). The Thai language does not always translate well.
When the divorce is by mutual agreement it has to be in writing and also state which party will exercise parental power over the children. If this cannot be decided then a court will decide.
Where the divorce is through the courts, the court will make a ruling on parental power or child custody. If the courts see the forfeiture of power under Section 1582 the court may appoint a third party guardian.
If the person with parental power or the guardian under Section 1520 behaves improperly or circumstances have subsequently changed. Then the court will have power to order the change of the person exercising parental power or the guardian.
The divorce agreement must reflect who will pay allowances for maintenance for the child and in which amount. Where there is a court judgment, the courts will decide the allowances for maintenance for the child.
I court judgment under Section 1561 (1), the wife or husband shall be entitled to receive compensation from the husband or wife and from the person who has been provided with maintenance or honored or the person who is the cause of such divorce.
The husband may demand compensation from the person who has sexually assaulted his wife, and the wife may demand compensation from another woman who has represented herself openly that she has an adulterous relationship with the husband. (This was also standard practice in the West until these types of provisions changed in many countries. They are still valid in Thailand under damages. You can also see similar provisions for damages, in this regard when it comes to an engagement to be married.)
If the husband or wife has consented to or connived in the act carried out by the other party under Section 1516 (1) or allowed another person to act under paragraph two, such husband or wife may not demand compensation. (The Section 1516 (1) provision makes provision for as an example, consent for having a minor wife. You cannot sue the minor wife when consent was given. Section 1523 covers all the issues with regards to a claim for damages during a divorce.)
If the divorce under Section 1516 (3), (4) or (6) arises from the responsible party with the aim of rendering the other party intolerable then they can’t claim it as a reason and are not entitled to compensation.
Under Section 1523 and Section 1524 the court will decide the compensation. The court can order a lump sum payment or installment payments at specified times.
Where it is a couple the required to compensation from the spouse it will take into account the amount of property received from the division of the community property due to the divorce.
Where the divorce is the sole fault of one spouse and the result becoming that the other spouse now has insufficient income and destitute. This spouse can request the liable spouse to pay living expenses.
The court can grant the living allowances while taking into account the ability of the payer and the status of the receiver. This was well as the provisions of Section 1598/39, Section 1598/40 as well as Section 1598/41 will apply. The right to claim living allowances will end if it is not raised in the divorce or in a counter claim.
Where the divorce is under Section 1516 (7) or under Section 1516 (9), the other spouse will pay living allowances for the party which is calculated according to Section 1526.
The right to receive living allowances ends when the party receiving living allowances has married again.
The right to bring an action under Section 1516 (1), (2), (3) or (6) or Section 1523 will end after one year has elapsed from the date on which the claimant obtains knowledge or should have obtained knowledge of the fact which may be asserted by him or her.
A cause based on which an action for divorce may not be brought may be proven in support of another divorce action based on other causes.
When during divorce proceedings should one of the parties file an application the court may temporarily adopt measures as deemed appropriate. (Most times this is about custody, living allowance of maintenance of the children.)
A divorce by mutual consent is effective from the date of the registration of the divorce. The effective date for divorce through the courts will be on the date of final judgment. This may not be asserted to the prejudice of third parties acting in good faith unless the divorce has been registered.
After the divorce the property will be divided, however between husband and wife:
(a) Divorce by mutual consent, the division of the property is made on the basis of property existing at the time of registration of the divorce;
(b) Divorce by court judgment, a portion of the judgment applicable to the property will take effect retroactively to the date on which an action for divorce has been brought.
The community property will be divided equally during a divorce.
With the diversion of the community property. Where a spouse has disposed of for their sole benefit. With the intent to cause damage to the other. This or disposed of without consent where consent of the other spouse is required by law. This or which has been willfully destroyed will be deemed to have continued to exist for division of the community property under Section 1533. Should there not be enough assets the willful party will make compensation out of his or her portion of the community of property or separate property.
With divorce the liabilities for debts which must be jointly liable shall be divided equally.
The information contained in our website is for general information purposes only and does not constitute legal advices. For further information, please contact us.