A) ENDING A MARRIAGE
These days, about fifty percent of marriages end with a divorce. But in reality, under Thai law, there are 3 reasons to terminate of marriage. According to section 1501 of the Commercial and Civil Code of Thailand (CCCT), they are;
- Cancelled by the Court
We all know why death ends a marriage. A cancellation by the Court is rare. It normally has a retroactive effect, meaning the same as if the marriage never happened. In these rare cases, one spouse can, for example, plead that he/she wouldn’t have married this person if she would have known certain facts, or that the marriage is void because of the way it was done (ex: someone under the legal age). This article wants to focus on the other way to terminate a marriage under Thai Law: with a divorce.
Divorcing in Thailand. The law is the same for Thais or foreigners.
First, we must say that under Thai law, there are no differences between Foreigners and Thais. They are treated equally. But for certain aspects of property, or because they might need to translate some documents, it can be a little bit more complicated. Again, to divorce in Thailand, your marriage must be recognized under Thai Laws.In Thailand, there are 2 ways to divorce:
1.AN UNCONTESTED DIVORCE IN THAILAND (making an agreement between spouses)
If the husband and wife wish to terminate their marriage, Thai law allow couples to divorce without any reason because a marriage is civil contract. Therefore, by consent, the spouses can modify and cancel their contract. If both parties agree to terminate a marriage (or a contract), they may do so but will have to follow the procedure. Many civil law countries accept these uncontested divorces. On the opposite, Common law countries, such as England, USA or Australia, do not accept an uncontested divorce and normally need to request a court order.
Divorce effect by mutual consent must be made in writing and certified by the signature of two witnesses according to section 1514 of Civil and Commercial Code. A divorce agreement can be made at the district office or in a law firm. There is no format required about this agreement but the important thing is both parties understand and agree to make a divorce. This is why a bilingual agreement can be important for a Thai-Farang couple.
Under Thai law, you should have at least 2 witnesses to sign the divorce agreement. Apparently there is no mention that the 2 witnesses have to be present at the same time but witnesses have to acknowledge who and what they are signing for (s.417/2494 Mrs Pong Pensara, plaintiff and Mr Nueng Satarat, Defendants). Although there are some witnesses acknowledge about divorce agreement but it’s only 1 witness signed for, it shall be deemed that divorce agreement is not completed (Supreme Court 1639/2522, Dr Wisut Tansirimongkol vs Oranut Tansirimongkol).Eventhough both parties has made a divorce agreement with 2 witnesses, it will not take effect if it is not register it at district office (Supreme Court 215/2519 Mr Suthep Pomasa vs Mrs Rien Pomasa)
The divorce agreement must be registered at the amphur. Both spouses have to be physically present. To avoid problems, we also suggest you to bring a translated copy (into Thai) of your passport and two (2) witnesses.
Like we saw, a divorce by mutual consent shall be registered. Upon consent and signing their divorce agreement with 2 witnesses, a husband and a wife need to register their divorce at district office in order to be legal according to section 1515 of Civil and Commercial Code.In case that both parties have signed their divorce agreement but one party doesn’t register his/her divorce, another party shall be entitle to enforce it by a court order (Supreme Court 1291/2500 Mrs Hieng Sae-ton vs Mr Hew Sae-jiew)
What should be included in a divorce agreement
If both parties registered their marriage at district office, both parties needs to agree over the child custody, the separation of the marital assets and any other thing they might want to include in their agreement (ex: Alimony). The officer at the registration office will note the divorce agreement concerning the financial aspects and the situation of the child.
2.A CONTESTED DIVORCE IN THAILAND (going to the Court)
If both parties can’t agree on their divorce, one party needs to file a petition to the court. But to do so, you must have a cause, or what is normally called "a ground". The burden of proof will be on the person requesting the divorce and she/he will have to appear in Court and prove his/her motivation for asking a divorce. In Thailand, there are several grounds for divorce. For example, they include (The most common that we see are underlined):
- The husband has given maintenance to or honored such other woman as his wife (Section 1516 (1) CCCT)
- The wife has committed adultery (Section 1516 (1) CCCT)
- One spouse is guilty of misconduct (criminal or otherwise) (Section 1516 (2)CCCT)
- One spouse has caused serious harm or torture physically or mentally the other, or has seriously insulted the other or his or her descendants (Section 1516 (3) CCCT)
- One spouse has deserted the other for more than one year (Section 1615 (4) CCCT)
- One spouse has been sentenced by a final judgment of the Court and has been imprisoned for more than one year if the offence committed is done without any participation, consent or in the knowledge of the other, and the cohabitation as husband and wife will cause the other party to sustain excessive injury or trouble (Section 1516 (4/1) CCCT)
- The husband and wife voluntarily live separately for more than 3 years (Section 1516 (4/2)
- One spouse has been adjudged to have disappeared, or has left the domicile for more than 3 years and it’s uncertain if she or he is alive or dead (Section 1516 (5) CCCT)
- Lack of marital support (Section 1516 (6) CCCT)
- One spouse has been an insane person for more than 3 years continuously and such insanity is hardly curable (Section 1516 (7) CCCT) ·One spouse has broken the bond of good behavior (Section 1516 (8) CCCT)
- One spouse is suffering from a communicable and dangerous desease which is incurable and may cause injury to the other (Section 1516 (9) CCCT)
- One spouse has a physical disability so as to be unable to permanently cohabitate as husband and wife. (Section 1516 (10) CCCT)
The procedureYou must file a petition to the Court. If you claim for some money to separate the common asset, a deposit must be made to the Court. It’s normally 2% of the value claimed. For example, if you bought a house whilst being married, or a car, and this is under “common property” (Sin Somros) for a value of 2 million baht, you are entitled to claim 1 million baht. So, you will have to pay 20,000 baht as deposit to the Court. If you win your case, the judge can order the other party to pay you back this deposit.If you have children together, you will probably go to the juvenile section first. They will make a kind report that will be used for the Court. Then, in Court, for the first appearance, (it’s normally a negotiation session). If parties can’t agree, a trial will be ordered.If the defendant doesn’t show, the only evidence examined will be the one of the plaintiff. If you don’t know where a party lives or is, a divorce ex parte can also be done under certain circumstances and after an announcement has been made.For the trial, the plaintiff must be present and has the burden of proof. Depending where the proceedings are, a divorce can be obtained in Court between 3 months to 1 year. This excludes appeals and special circumstances. Again, this is an approximation. Divorces are done in the family Court division.
Divorcing abroad of a Thai marriage
The Conflict of Law Act B.E.year 2481 enacts the following clauses about divorces:
Section 26 “A divorce by mutual consent shall be valid if it is permitted by the law of nationality of husband and wife”
Section 27 “A divorce cannot be granted by the Siamese Court unless it is permitted by the law of nationality of husband and wife.”No matter where a mutual consent take place, it is difficult to the other person will know.
The Supreme Court in decision s.5887/2533, whereas one party is Thai and another party is Indian stated that “A mutual consent divorce between plaintiff and defendant shall be valid between two of them only. It cannot be set up against their persons by acting in good faith except the parties who registered their divorce according to section 1515 of Civil and Commercial Code”
The spouse who registered their marriage under foreign law, can divorce by court order in Thailand. If one party sees that there is one of the grounds for divorce according to section 1516 of the Commercial and Civil Code.The spouse has to be present at the embassy of spouse’s domicile. The Spouse declares his/her intention to divorce by written document concerning about marital property and child custody. Both parties have to sign it the presence of the registrar and 2 witnesses. In case that one party cannot be present at the same time, they can agree which party should submit the divorce first and another party will submit later.The divorce made abroad can be registered at a district office in Thailand.
First you need to certify the paper from Ministry of Foreign Affair of divorce country and translate into Thai and certify by Thai embassy abroad.In the case that someone is in dispute over divorce overseas, the court will step in to either certify or refuse the divorce.
Recognition of a Thai divorce abroad
The laws in every country are different and they change frequently. You should verify if a Thai divorce is recognised in your country with your embassy or a foreign lawyer from your own country.
UK: We found a website at http://thaiwomensorganisation.com/ talking about this aspect of Thai divorce and British recognition of it. One of the articles is in .pdf, is related to "family law" between Thai and UK citizen. It says that:
"If the parties are granted the divorce by Thai court and one of party had
Thai national or reside in Thailand, UK law will recognize it. But if the
parties have a divorce by consenting and register it at district office,
UK law might not recognize it if one of party resides in UK within 12
months before divorce"