Prenuptial Agreements in Thailand – An Overview
Foreigners who get married in Thailand often question whether a prenuptial agreement is needed when they register their marriage in the Kingdom. In Thailand a “prenuptial agreement” is known as a “premarital agreement”, it is a written contract agreed by both parties before getting married (registering their marriage), which aims to clarify each spouses’ personal assets upon entering the marriage (this is referred to as “personal property” or ‘sin suan tua’) and to specify each spouse’s property rights after marriage.
It is required by the Thai Civil and Commercial Code that a prenuptial agreement must not be contrary to public order or good morals, and that such contract shall not apply any foreign law; otherwise such agreement shall be considered as void. Therefore, the parties must agree to apply Thai law as the governing law of such agreement. At the time of the marriage registration, the parties must declare all terms of the prenuptial agreement in the Marriage Register and state that such agreement is annexed to the marriage register. It is also a requirement that such agreement be made in writing, and signed by both spouses in the presence of two witnesses. If the parties fail to comply with these requirements, the premarital agreement shall be considered as legally void. 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 details in the document.
In relation to the issue of whether the spouses can insert a clause regarding the management of debts in the premarital agreement such as one party agreeing that their children’s education fees and other debts deriving from management of their household affairs will be the liability of the other party, Thai law provides that such clauses would be ineffective given that theses debts which are incurred by either spouse during marriage, shall be considered as “joint debts” i.e. both are liable for them. However, in the case of both spouses agreeing to settle joint debts by deducting them from marriage property in the first place, this can be regarded as asset management which is applicable and can be enforceable.
When it comes to disputes, the rights of creditors will not be affected as they are third persons acting in good faith. However, a problem can arise when the debts are not considered as joint debts, but rather personnel debts. In this case, the creditors of the party who created the personal debt can only call for half of the marriage property which belongs to such party which incurred the debt. While the other party can request the court to separate his/her part of marriage property before such property has been sold by auction or otherwise realized. If such property can be equally divided, it will be in a form of separated property. However, if such property cannot be equally divided, it will need to be in the form of money.
Once a premarital agreement is effective at the time of marriage registration, the agreement cannot later be altered except by the final order of the court to effect the alteration or cancellation of the agreement. If such order is made then the court shall notify the Marriage Registrar of the matter in order to have it entered in the Marriage Register. Spouses should also note that any agreement made between them during their marriage regarding assets or management thereof may be avoided/ cancelled by either of them at any time during their marriage or within one year from the day of the dissolution of their marriage. The writer recommends that if a spouse wishes to cancel such agreement (which was made during their marriage) then it should be done in writing and sent by registered post so that the spouse wishing to do this has evidence of when such cancellation took effect.
Even though it is optional for spouses to enter into the prenuptial agreement before marriage, it is suggested to enter into one before starting family life as it could help to prevent future disputes and problems arising between spouses. Such agreement can be referred to and applied when one party brings a case against the other party claiming for a separation of assets or payment of profit or interest deriving from assets in dispute.
If you require legal support with the drafting of a legally compliant premarital agreement or registering a marriage in Thailand then please contact us at:
Dharmniti Law Office Co., Ltd.
2/2 Bhakdi Building 2nd Floor, Witthayu Road, Lumphini, Pathumwan, Bangkok 10330
Tel: (66) 2680 9777
Fax: (66) 2680 9711
Email: ryan [at] dlo.co.th or info [at] dlo.co.th
Writer: Phutrapee Wongsittipat - Lawyer
Email: phutrapeew [at] dlo.co.th