General Considerations for a Thailand Divorce
There are three types of lawful divorce in Thailand: 1.administrative divorces which are registered at a local government office, 2. court divorces adjudicated by a Thai judge, and 3. Sharia law (Islamic law) divorces. Normally a Thailand divorce lawyer will be dealing with court and administrative divorce, while Sharia law divorces are less common.
Generally speaking, if either you or your spouse currently resides in Thailand you may be able to file for a divorce in Thailand courts provided there are lawful "grounds" (reasons) for the divorce. Although certain grounds for divorce are relatively straightforward, other grounds for divorce are more open to interpretation. An experienced Thailand family lawyer can determine whether the “grounds” described for a divorce would be legally sufficient in any given case.
If your marriage was originally registered in one of the Thailand district offices and both you and your spouse consent to the divorce, then the process is administrative and relatively simple compared to a court divorce. Nevertheless, even for an administrative divorce issues such as child custody, alimony and division of marital assets can be complex and have far-reaching consequences. As a result a Thai divorce lawyer with experience in drafting divorce settlement agreements is often required to reach a final settlement between the divorcing spouses.
Thailand Administrative Divorce
If you registered your marriage at a Thailand local district office (Khet or Amphur) you and your spouse may register for an administrative Thailand divorce. Registering an administrative divorce at the local district office requires that you and your spouse do not have any disagreements over child custody or property. If there are assets to be divided or issues regarding custody of children, then the divorcing spouses can negotiate a settlement agreement for the divorce and this should be registered at the same time as the administrative divorce is registered.
An administrative divorce is also referred to as a “consensual” or “uncontested” divorce. However these terms are not totally accurate because, it is possible to have a consensual divorce in a Thailand Court (subject to negotiation and settlement agreement). Additionally, an uncontested divorce in other jurisdictions are often handled within the Court system and signed by a judge. In Thailand, an administrative divorce does not involve a Court or a judge.
Persons considering an administrative divorce in Thailand should be aware that a minority of nations either do not accept an administrative divorce from Thailand as being lawful divorce. . This policy may be due to the fact that no judge is involved, or that the divorcing spouses do not have residence in Thailand. Therefore for foreign persons or person residing abroad, a Thailand divorce lawyer with experience in international divorce should be engaged.
What if my spouse does not consent to a divorce?
If one spouse doesn’t consent to a divorce, or if a couple is unable to agree on issues such as division of assets, finances or child custody rights, a divorce may be filed with the Thai Court under certain circumstances. In order for a divorce to be granted, satisfactory proof must be given that the marriage meets the grounds for divorce in Thailand. Other requirements must also be met, including territorial jurisdiction over the divorce
Grounds for Divorce in Thailand
The basic grounds for divorce in Thailand include the following:
- One spouse has committed adultery, had regular intercourse with another person, or honored another person as a husband or wife.
- One spouse is guilty of misconduct (including criminal offenses and causing physical or psychological harm).
- One spouse has caused serious harm to the body or mind of the other, or has seriously insulted them or their parents.
- One spouse has deserted the other for more than one year.
- One spouse has failed to provide proper maintenance or support.
- One spouse has had incurable insanity for three years continuously.
- One spouse has left the marital home for more than three years.
- One spouse has broken a bond of good behavior.
- One spouse is suffering from a dangerous communicable disease which may cause injury to the other.
- One spouse has a physical disability, causing them to be permanently unable to cohabit as husband and wife.
Thailand family courts have jurisdiction in divorce cases where there is a ground for divorce and when one or both spouses reside in Thailand. Thailand courts normally require sufficient evidence establishing one or more of these grounds in order to provide a grant of divorce. Basic evidence normally includes testimony by the plaintiff that establishes a case. A showing of grounds of jurisdiction is also required.
Can spouses living outside of Thailand file for a divorce in Thai Court?
If the divorce is administrative, both parties will still need to appear at the District office to register the divorce. A contested divorce however requires a judgment from the Court. If you are now living abroad, the Thai Court may, potentially, still have jurisdiction over a divorce action under some circumstances. Therefore an attorney may still be able to file a divorce complaint on your behalf although you may not currently be located in Thailand. However, normally a plaintiff (the spouse who files the divorce complaint) must appear in person at least one time during the court process to provide testimony that establishes the grounds for the divorce. A divorce attorney can normally assist with reserving a convenient date with the court.
If you reside in Thailand but your spouse is not present or will not return to Thailand for the divorce process, you may still be able to proceed provided that he or she has received adequate notice of the divorce action. Service must be applied through a Thai court. However, if your spouse is not in Thailand and substitute service, (such as by publication) may be allowed in certain circumstances. If you spouse does not respond to a lawful service from the court, the divorce case may proceed by default.
How are property and outstanding debts divided in the event of divorce?
Thailand is a "Community Property" jurisdiction. When a couple divorce in Thailand, separate property ("sin suan tua"), namely assets and property acquired before marriage, generally remains the property of the original owner.
Assets and property acquired during marriage are commonly considered community property ("Sapsin somrot") with both spouses having equal ownership rights. The rules regarding division of property are complex and the Thai Court will divide the property according to the law and individual facts of the case.
However, in a negotiated settlement divorcing spouses may alter their division of property normally required by the law if the divorcing couple chooses a different division of assets. Also, prenuptial agreements can alter the distribution of property during a divorce.
Debts incurred during the marriage, whether they are household, medical, or educational, are normally the responsibility of both parties.
Does Thailand allow “No-Fault” divorce?
In one sense, Thailand does allow for “no-fault” divorce: When the divorce is consensual and registered in an administrative process at one of Thailand’s District offices.
However, not all marriages are able to be ended through the administrative process. In general, only those married couples who originally registered their marriages in Thailand may also divorce through the administrative process at District offices.
For marriages that do not qualify for the administrative divorce process, lawful ground for divorce must be proven to the Thai courts for a divorce to be granted. Therefore, in this sense, Thailand courts do not allow for “No-Fault” divorce.
What if I have a prenuptial agreement?
Prenuptial agreements are allowed in Thailand provided they meet the procedural and substantive requirements of Thai law. A properly executed prenuptial agreement is usually considered a valid legal agreement in other international jurisdictions that accord with basic principle of fairness and due process. Procedural requirements for prenuptial agreements may be stricter in Western Common Law jurisdictions. On the other hand, many western jurisdictions have fewer requirements for approving prenuptial agreements. Thailand has its own requirements for registering a prenuptial agreement at the time of marriage. If your marriage and prenuptial agreements were executed or registered in another nation a Thai Court will normally accept the agreement if it adheres to requirements of the foreign law.
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Divorce in Thailand
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