Marriage is a legally binding agreement between two partners that allows them to join their lives, responsibilities, and finances together as a couple. But what if a marriage simply doesn’t work, and one or both partners want out of the arrangement? According to Thai law, a marriage officially ends upon the death of one of the partners, or through divorce, the legal dissolution of the marriage bond.
Thailand and Divorce
Early Thai literature shows that in Thailand’s Buddhist society, women had the right to divorce husbands who mistreated them or committed adultery. In 2002, over 1 divorce happened for every 1000 people in the country, a rate of about 6500 divorces per year reflecting increased economic power and mobility of women in modern Thai culture. According to a recent article by Chiang Mai University law professor Somchai Preechasinlapakun, however, women still tend to end up raising the children on their own with little support from their ex-husbands. This stands as a stark contrast to many Western countries where parents can often fight viciously for custody of their children.
Another phenomenon in Thailand is mixed marriage between Thais and foreign nationals. The majority of these marriages are between Thai women and foreign men, and according to some online estimates up to 50% of first marriages of this kind end in divorce. Explanations include different cultural expectations and communication difficulties. If one follows forums and web postings, however, there is also the suggestion that some of these marriages are based on exploiting the foreigner’s financial assets and divorce occurs when this is discovered or else when the assets run out.
In any instance and for whatever reason, divorce can be a very difficult and painful time for both divorcing partners as well as their children and other relatives. Increased rates of divorce tend to lead to increased single-parent families and can negatively affect children’s happiness and security.
How Does a Divorce Work in Thailand?
As in most jurisdictions, Thailand recognizes a distinction between amicable and contested divorces.
An amicable divorce is simply one in which both parties agree to end the marriage.
Such divorces are very easy to obtain, since in essence there is no legal conflict between the two parties. To obtain a divorce in Thailand, both parties must go to the local district office (Amphoe) where their marriage was recorded and declare their intention for divorce in front of two witnesses. They must sign divorce papers, provide identification and a processing fee, and answer questions about agreed financial support and custody of any children resulting from their marriage.
The whole process is quick and easy, so long as both parties remain amicable and agree to the proceedings.
In case one marriage partner refuses to agree to a divorce, the partner wanting the divorce must apply to the courts for divorce on one of the following legal grounds.
Grounds For Divorce
1. The husband has married or given financial maintenance to another woman, or if the wife has committed adultery.
2. One partner is guilty of criminal or other misconduct.
3. One partner has physically or psychologically harmed the other.
4. One partner has deserted the other for a period of 1 year or the couple has lived apart for 3 years.
5. One of the partners has disappeared for 3 years.
6. Maintenance and support have not been adequately provided.
7. One partner has been incurably insane for 3 years.
8. One of the partners has broken the bond of proper behaviour.
9. One partner has an incurable, communicable disease that may affect the other.
10. One of the partners has a physical disadvantage interfering with cohabitation as husband and wife.
We suggest that you look at section 1516 of the Thai Commercial and Civil Code to find a list of grounds according to Thai Law.
From the above list, it’s clear that there is room for interpretation in the grounds for divorce, which means the party filing must make a convincing case against the other. This is often where divorce proceedings can turn ugly and truths are distorted.
It is important to note that:
1.A Thai lawyer must file your divorce with the Thai Court
2.Your lawyer may act for you in filing through power of attorney, however you must be present in court when your case is heard
3.in order to file for divorce, either or both of the plaintiff and defendant must be a resident of Thailand
4.You cannot re-marry until your divorce is officially registered as final with your district office
Division of Assets and Debts
Thai law holds a distinction between pre-marriage, personal property (sin suan tua) and marriage property (sin som rot) and maintains that these be separated upon divorce. This means that, even without a pre-nuptial agreement, your property and debts from before marriage remain yours, while anything you accrued during marriage is split equally between you. Prenuptial agreements are recognized in Thailand, however, and they are mostly used to delineate which assets belong to which parties before marriage so there is clarity in case of divorce. Prenuptial agreements can also protect you in case of divorce in a foreign jurisdiction. Under Thai Law, the management of property can also be decided in a prenuptial agreement.
Custody of Children
In amicable divorces, the partners can decide for themselves who will take custody of the children, or else how to share joint custody. The term “custody” often refers to “parental powers” but can also mean the “physical custody” of the child. These are different under Thai Law. Both parties can have parental powers, meaning deciding about the education, religion and others for the child, while only one party can be given “physical custody” of the child.
In contested divorces, the courts will rule as to which of the parents will retain custody of the children and how maintenance (child support) is paid, if any. In some cases, one party will attempt to have the other declared incompetent as a parent. If it can be shown that the party in question may endanger the child or has committed a crime or gross misconduct, then the court may remove custodial rights from that parent.
It’s important to work with a lawyer to protect your rights as a parent in any contested divorce proceeding, but remember that Thai judges will rarely separate a child from a parent. In other words, joint custody will normally be allowed because it is in the best interest of the child to keep relations with both parents.
Spousal Support (also called “Alimony”)
Legally known as maintenance, payments from one party to the other may be arranged or court-ordered. This is usually done in instances when one party will suffer a marked decline in material quality of life following a divorce, however maintenance needn’t be permanent. Usually payment is ordered for a fixed period to allow the receiving party to become financially independent and to allow the two parties to become fully separated. In Thailand, the Courts will rarely give alimony to one spouse, but they will separate the common property equally between spouses. (50%-50%)
Protecting Yourself from the Risks of Divorce
Of course the best protection from the risks associated with divorce is to ensure that you enter into a marriage with a partner you know well and trust fully. In the case of cross-cultural marriages, however, this may be incredibly difficult, especially because of language barriers. One way to get around this is to investigate your potential spouse. This may sound distasteful, however an honest person has nothing to fear and you can ask your Thai partner to cooperate with an investigation of his or her background so that you both have peace of mind before marriage.
A prenuptial agreement, as mentioned previously, is another way to safeguard your interests should your marriage fail. In Thailand, prenups are largely used to delineate pre-marriage assets of the two partners and to agree to a jurisdiction where you would follow the law for divorce proceedings should they become necessary.
For property, a usufruct agreement, a lease or superficies are common instruments to protect the rights of foreigners living in Thailand. As foreigners may not directly own land in Thailand, the land that a couple inhabits will always be the property of the Thai partner. Should divorce occur, a usufruct agreement allows the foreign partner to continue to live on the land for your lifetime, or for 30 years with possibility to renew.
Divorce is rarely a happy or welcome occasion, yet for some marriages it is the final and only remaining solution to allow both partners to move their lives past a failed relationship. Keeping the dissolution of the relationship amicable makes divorce easy to accomplish and easier for the partners and children involved. However, some marriages end badly and lead to even messier divorces. If you need a divorce in Thailand, make sure you work with a lawyer and know your rights, most especially with regards to child custody so you can protect your family and your finances.