Droit
Protecting your assets during a divorce in Thailand
19/01/2022
Unfortunately, not all marriages last and may eventually end in divorce. Divorces can be a stressful challenging experience and may be confusing for some. Divorces in Thailand are governed by the Civil and Commercial Code.
There are two types of divorces in Thailand, mutual and contested.
A mutually consented divorce is where you come up with an agreement with your spouse, there is no judge or court involvement. Once an agreement has been reached, the parties must register the divorce and terms with the local Amphur (district office).
Contested divorces are where you cannot agree with your spouse on the terms of divorce. Contested divorces will be decided for you by a judge in court based on the law and individual circumstances.
For more information about getting divorced in Thailand, please take a look at our article here.
Marital property in Thailand?
In Thailand, the definition for marital property is set out in the Civil and Commercial Code.
Section 1533 states that upon divorce, any matrimonial property shall be divided equally between the spouses.
Section 1535 further states that upon termination of the marriage, both spouses shall be liable for any common debts equally.
A good way to prevent any issues or conflicts arising over assets in the event of a divorce is to prepare and agree a prenuptial agreement before getting married. Prenuptial agreements allow the spouses to list their personal assets at the time of marriage and keep a form of accounting ledger for their personal assets and property acquired during the course of the marriage.
Are prenuptial agreements in legal Thailand?
Prenuptial agreements are legal in Thailand, however, they must satisfy all the requirements under Thai law. If you got married in a country outside of Thailand and your prenuptial agreement was registered in that country, it can still be enforced by a Thai court provided that is consistent with the foreign law.
Under Thai law, the following basic requirements must be satisfied when creating a prenuptial agreement.
- The agreement must be in written form.
- Each party must be represented by his or her own attorney.
- The prenuptial agreement must be signed by each party and two witnesses (who are at least 18 years old). This must be done when the marriage is registered.
- The prenup must be registered at the same local office where the marriage is registered.
A prenup allows the couple to handle the division of marital property discreetly and privately. Once a settlement has been reached, it will be filed with the district office (where the divorce is granted).
Property Types in Thailand
There are two distinct property types in Thailand in relation to marital property:
SIN SUAN TUA – separate property to a marriage:
- Property belonging to either spouse before marriage;
- Property for personal use, clothes or ornaments;
- Property acquired by either spouse during marriage by will or gift;
- Khongman (dowry).
SIN SOMROS – marital property:
- Property acquired during marriage;
- Property acquired by either spouse during marriage through a will or gift;
- Earnings from the Sin Suan Tua (e.g. income from renting an inherited property);
Please note, that if there is any doubt as to whether a property is Sin Somros or not, it will be presumed to be Sin Somros (Section 1474 of the Civil and Commercial Code).
Additionally, for example, if you were to buy a car during your marriage and you pay for the car with personal money (not marital) the car would be considered a personal asset of the spouse who paid for it (ONLY if the car was paid with personal property), even though it was acquired during the marriage (Section 1472 of the Civil and Commercial Code)
How are assets divided during a divorce in Thailand?
A 50-50 division of the Sin Somros is the most common divorce settlement. One potential sticking point could be the houses and vehicles that couples have purchased during their marriage. These items could be a sticking point as they cannot be literally split in half and the resulting shares being given to both parties. Therefore a compromise must be met in order to reach a divorce settlement. If no agreement can be made, couples usually opt to sell all the marital property in question and share the proceeds of the sale.
Please note that if you entered into a prenuptial agreement, make sure your lawyer is aware and takes it into consideration.
How are gifts and contracts between husband and wife dealt with during a divorce?
When you undertake an agreement with your spouse (gifts are considered as a contract under Thai law) in relation to personal or marital assets, it is important to note that such agreements can be voided during marriage or within one year from the day of dissolution of marriage (as stated in section 1469 of the Civil and Commercial Code).
During a divorce, any contracts such as loans or gifts, can be voided and the return of the money must be granted as it is considered Undue Enrichment (sections 406 – 419 of the Civil and Commercial code).
En conclusion
Belaws’ Family Law experts are on hand to assist you with your divorce in Thailand. Our experts will help ensure that your divorce is properly prepared and registered in order to avoid facing any legal difficulties in the future. Our experts will also ensure that your marital assets are divided in a fair manner which is satisfactory to both parties.
To learn more about our Family Law services, cliquez ici
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