Thai Laws pertaining to marriage, prenuptials and smart divorcing in Thailand
Benefits of a Prenuptial Agreement in Thailand
Even though marriage laws in Thailand itself stipulate that personal property of each spouse remains personal property during the course of the marriage a prenuptial agreement in Thailand commonly lists personal assets of each spouse at the time of marriage. A prenuptial agreement could prevent unnecessary disputes over ownership of certain items in case the marriage is later dissolved. In a possible future divorce the parties do not have to prove what they brought in the marriage as this is listed in the prenuptial agreement. In this case it is possible to simply ignore a claim from the other spouse on personal property when the marriage ends in a divorce.
Management of property during the marriage
Personal property is under Thai law referred to as is Sin Suan Tua, opposite jointly owned or marital property, which is under Thai law referred to as Sin Somros. Subject to section 1472 of the Civil CodeSection 1472: As regards to Sin Suan Tua, if it has been exchanged to other property, other property has been bought or money has been acquired from selling it, such other property or money acquired shall be Sin Suan Tua. the general rule is that all properties acquired during the course of the marriage will become jointly owned property regardless how the title is held. Control over these properties lies with both spouses jointly, unless the husband and wife have made a prenuptial agreement prior to their marriage. The prenuptial agreement may grant management of certain jointly owned property, as listed in section 1476 of the Civil and Commercial Code, to one of the spouses. As section 1476 among others refers to real estate property it is important to realize that real estate in Thailand often will be held as a personal property of the Thai spouse. The aspect of management in a prenuptial does in any case not apply on land acquired in Thailand during the course of the marriage.
Division of assets in a divorce
Note: Irrespective if a foreign spouse has signed away his rights to land or property purchased by his Thai spouse during marriage, in a divorce procedure the Thai court can simply ignore the signed 'letter of confirmation' by which the foreign spouse has signed away his rights as there is a conflict between the regulation by the Ministry of Interior and the system of 'property between husband and wife' in the Civil and Commercial Code. As the regulation by the Ministry of Interior is lower legislation the court must apply the system of the Civil and Commercial Code and must ignore the letter of confirmation in its decision how to deal with properties between husband and wife (i.e. it will be dealt with as a marital property and not as a personal property of the Thai spouse).
In a possible divorce in Thailand all properties (personal and jointly owned between husband and wife) must be taken out of the marriage. For personal property this should not be a problem as it is listed in the prenuptial agreement (if any), unless it has been exchanged during the marriage for other property (i.e. this still remains personal property) but if there is a dispute about the fact if a property has become a marital property or a personal property under Thai marriage laws the division could become complicated. If the couple can't agree on their separation, division of property and the terms the divorce could become contested, which means it has to be referred to a court instead of a simple divorce on mutual consent at the amphur in Thailand which requires agreement. To determine the valuation of property which consists out of personal and marital property is complex. The court has the discretion to value it based on individual circumstances and of course according to the laws of Thailand.
The prenuptial agreement can include possible division of properties, however as the concept of a prenuptial agreement is rather new the legal literature on prenuptial agreements is still underdeveloped. It is slightly unpredictable how the courts deal with arrangements on the division of properties made in a prenuptial agreement.
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