In Thailand a “prenuptial agreement” is known as a “premarital agreement”, it is a written contract agreed by the spouses before registering their marriage at the District Office, it basically aims to clarify each spouses’ personal property upon entering the marriage (under Thai law personal property is referred to as ‘sin suan tua’) and to specify each spouses’ property rights after their marriage is registered.
Legal Requirements for a Premarital Agreement
Public Order or Good Morals
Section 150 of the Thai Civil and Commercial Code provides the principle of “public order or good morals”, and such principle is applied with a prenuptial agreement. To be legally enforceable in Thailand, a prenuptial agreement must not be contrary to public order or good morals. Additionally, such principle is supported by rulings of the Thai Courts which have struck down various clauses in contested premarital agreements.
Must be Governed by Thai Law & Not a Foreign Law
The Civil Code stipulates that a premarital agreement cannot apply a foreign law as the governing law, hence, any such agreement which tries to apply a foreign law shall be void and unenforceable.
Formalities for the Agreement at the time of Registration of Marriage
At the time of the marriage registration, the spouses must declare all terms of the prenuptial agreement in the Marriage Register and state that such premarital agreement is annexed to the Marriage Register.
Made in Writing & Witnessed
It is also a requirement that such agreement be made in writing and be signed by both spouses in the presence of two witnesses. If the spouses fail to comply with the above requirements, then the premarital agreement shall be legally void.
Foreigners and Thai Language Requirement
Foreigners should also note that the premarital agreement will need to be made in Thai language when it is registered, hence it is prudent to have an independent translation prepared beforehand so that they know the exact content of the document.
Management of Debts
In relation to the issue of whether the spouses can insert a clause into the premarital agreement regarding the management of debts such as one party agreeing that their children’s education fees will be the liability of the other party, Thai law provides that such clauses would be ineffective given that debts such as these shall be considered as a “joint debt” which both spouses are liable for.
In the case of personal debts of one spouse (not a joint debt), the creditors of the spouse who created the personal debt can only call for half of the marriage property which belongs to the spouse which incurred the debt. While the other spouse can request the Court to separate his/her part of marriage property before such property is sold by auction or otherwise realized. If such property can be equally divided then it will be separated accordingly, however, if such property cannot be equally divided, then it will need to be in the form of money.
Amending & Cancelling a Premarital Agreement
Once a premarital agreement is registered, the agreement cannot thereafter be changed except by the final order of the Court which can amend or cancel the agreement. If such order is made, then the Court shall notify the Marriage Registrar to have it entered in the Marriage Register.
Practical Considerations When Preparing a Premarital Agreement
When a couple wish to use a premarital agreement before registering their marriage, the writer recommends that they be mindful of the following considerations:
1. The Agreement should detail the respective assets of the spouses before they registered their marriage, so it is clear as to what property is considered as the personal property (sin suan tua) of each spouse. This point is vitally important given that under Thai law all property that is owned by a spouse before they registered their marriage remains their personal property during the marriage. If the agreement lists such personal property comprehensively it can help the spouses to avoid unnecessary conflict later on about who had what property before they were married, should they later wish to divorce. It should also be noted that the Civil Code provides that the following are considered as personal property:
2. It would be sensible to state in which country a divorce must be registered in case one or both spouses wishes to divorce so that the issue of jurisdiction can be settled in advance. If the marriage is registered in Thailand, then the writer recommends that the divorce should be registered in Thailand too.
3. The spouses should have their agreement and it terms reviewed by a lawyer who specializes in family law to ensure that its provisions are legally compliant and are not likely to be considered as contrary to public order or good morals.
4. In addition to issues relating to property and debt, a premarital agreement can also make provisions for other matters such as establishing rights and responsibilities regarding management of the properties arising during the marriage (not personal property).
Even though it is optional for spouses to enter into the prenuptial agreement before registering their marriage in Thailand, it can be a good idea to do so given that it can help to prevent future disputes and problems arising between spouses on property and the division thereof if the marriage breaks down.
Dharmniti Law Office Co., Ltd.
Address: 2/2 Bhakdi Building 2nd Floor, Witthayu Road, Lumphini, Pathumwan, Bangkok 10330
Tel: (66) 2680 9777 Fax: (66) 2680 9711
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Writers: Phutrapee Wongsittipat & Ryan Crowley