Family Disputes

Family Disputes

Family quarrels are bitter things. They don't go according to any rules. However, when such a quarrel turns into a legal dispute, then a legal resolution is inevitable. The legal system of Thailand is diverse since it is based on the European civil law model with the main influence being from France's civil law system and is primarily codified in the country's Civil and Commercial Code.

When a dispute involves family, the Civil and Commercial Code of Thailand got it covered. It covers issues such as civil unions, marriage, legal separations, contested and uncontested divorces, domestic and foreign adoptions, parental custody of children, and many other areas.

At Juslaws & Consult our family law department specialize in the following issues:

  • Marriage  Registration in Thailand
  • Divorce in Thailand
  • Child Custody
  • Child Adoption
  • Pre-Marital / Prenuptial Agreements

Marriage Registration in Thailand

In order for you to understand how The procedure to register marriage in Thailand either both Thai citizens or a Foreigner with Thai citizen is quite straightforward. However, in order to register your marriage in Thailand, you have to know the qualifications according to the Civil and Commercial Code of Thailand.

To register marriage in Thailand or with a Thai citizen, the parties must:

  • According to Section 1448, a marriage can only take place when both parties reach the age of 17 years old. Although the court allows the minor to marry, however, with appropriate reason and consent from the minor’s parents or legal guardians. 
  • Both parties must have healthy and sane mental health.
  • Both parties must consent to the marriage.

Here are the basic requirements for a foreigner in order to register marriage with a Thai citizen or with another Foreigner in Thailand:

  • Original Passport
  • Affidavit of  Freedom to Marry (also known as “Single Status Certificate”) from the Foreigner’s Embassy or Consulate in Thailand. This document basically states that the foreigner is free to marry and is single.
  • A certified true copy of the Foreigner’s Passport either from his/her Embassy or Consulate or from a Thai Notary Public
  • Divorce Certificate or Death Certificate (if applicable)

For the Thai Citizen’s part, here are the required documents they need to present to register marriage in Thailand:

  • Thai ID Card
  • House Registration (Tabien Baan)
  • Certificate of Name Change (If applicable)
  • Divorce Order or Death Certificate (if applicable)

Note: The District Office in Thailand reserves the right to request further documents to support the marriage registration. (case-by-case basis or depending on the nationality of the foreigner)

Marriage Registration with a Thai Citizen abroad

If a Foreigner wishes to marry a Thai citizen in his/her country and would like to register it under the Thai law then under Section 1459, it stipulates that a marriage in a foreign country between Thai people or between a Thai people and a foreigner may be effected according to the form prescribed by Thai law or by the law of the country where it takes place. If the spouses desire to have the marriage registered according to Thai law, the registration shall be effected by a Thai Diplomatic or Consular Officer.

Divorce in Thailand

A Marriage is not always perfect. It is not always a fairytale love story like what many of us think. While some are lucky to have been able to find their true love, there are some who are not. There are many reasons as to why couples will conclude their relationship and put it to an end. From issues about being separated, family matters, culture, character, career, or other private problems between the spouses. Such problems may not have bearing or legal consequences if the couple has not registered marriage.

Juslaws & Consults wants you to be aware that in Thailand the law provides for two types of divorce, Contested and Uncontested Divorce. Uncontested Divorce is also known as administrative and it is generally easier and quicker to obtain, while Contested Divorce is handled by the court and requires grounds under the Thai law in order to dissolve the marriage.

Here is a detailed explanation of the two (2) types of Divorce in Thailand:

A) Uncontested Divorce
Divorce by mutual agreement (Uncontested Divorce) - Under Section 1514 of the Civil and Commercial Code of Thailand, “Divorce may be effected only by mutual consent or by the judgment of the Court. The divorce affected by mutual consent must be made in writing and certified by the signatures of at least two witnesses.” 

This method of divorce is applicable if both spouses agree to end their marriage and divorce. The parties shall have a written Divorce Agreement which shall state their wishes and they shall have two (2) witnesses signing such agreement. Once the agreement is made and signed, both parties shall register the divorce at the local district office. The parties should also be present during the registration and cannot be done online or electronically as designated under the Electronic Transaction Act B.E. 2549 (2006), Section 3.

B) Contested Divorce
Divorce by court judgment (Contested Divorce) - The Divorce by the judgment of the Court shall have a spouse filing a case to the Court and raising the reason(s) in compliance with Section 1516 which states the Grounds for filing the Divorce.

Grounds for Divorce by Court Judgment

As mentioned above, in order to dissolve a marriage through the Thai court, one of the spouses must file a Divorce Case under one or more grounds as follows:

1. One spouse has given maintenance to or honored another person as wife or husband, committed adultery or had regular sexual intercourse with such other person, such other spouse may enter an action for divorce;

2. One spouse is guilty of misconduct, notwithstanding whether such misconduct is a criminal offense or not, if it causes the other:
a) to be seriously ashamed;
b) to be insulted of hated or account of the continuance of being husband or wife of the spouse having committed the misconduct; or
c) to sustain excessive injury or trouble where the condition, position, and cohabitation as husband and wife are taken into consideration;
the latter may enter a claim for divorce;

3. One spouse has caused serious harm or torture to the body or mind of the other or has seriously insulted the other or his or her ascendants, the latter may enter a claim for divorce;

4.One spouse has deserted the other for more than one year, the latter may enter a claim for divorce;
a) One spouse had been sentenced by a final judgment of the Court and has been imprisoned for more than one year in the offense committed 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, the latter may enter a claim for divorce;
b) The husband and wife voluntarily live separately because of being unable to cohabit peacefully for more than three years, or live separately for more than three years by the order of the Court, either spouse may enter a claim for divorce;

5. one spouse has been adjudged to have disappeared, or has left his or her domicile or residence for more than three years and is uncertain whether he or she is living or dead;

6. One spouse has failed to give proper maintenance and support to the other or committed acts seriously adverse to the relationship of husband and wife to such an extent that the other has been in excessive trouble where the condition, position, and cohabitation as husband and wife are taking into consideration, the latter may enter a claim for divorce;

7. One spouse has been an insane person for more than three years continuously and such insanity is hardly curable so that the continuance of marriage cannot be expected, the other may enter a claim for divorce;

8. One spouse has broken a bond of good behavior executed by him or her, the other spouse may enter a claim for divorce;

9. One spouse is suffering from a communicable and dangerous disease that is incurable and may cause injury to the other, the latter may file a claim for divorce;
10.One spouse has a physical disadvantage so as to be permanently unable to cohabit as husband and wife, the other may enter a claim for divorce.

Child Custody

Having a child is a dream come true for every family, but some stories do not always end with a happy ever after, this is the reason why a law such as Child Custody has been enacted to protect the well-being of the children. The parental power to a child or the custody of a child will occur in all families since the day the child was born.

With reference to the Civil and Commercial Code of Thailand in relation to the parental power to a child, it stipulates that a child is subjected to parental power as long as he/ she has not reached his/her legal age yet. However, the parental power will be exercised by the father or the mother when:

1. The mother or the father is dead;
2. It is uncertain whether the mother or the father is living or dead;
3. The mother or the father has been adjudged as an incompetent person;
4. The mother or the father is placed in a hospital by reason of mental infirmity;
5. The parental power has been granted to the mother or the father by an order of the court;
6. The mother or the father have come to such agreement as provided by the law that it can be made.

This power is to protect, control, and treat a child in good circumstances, procure the four requisites, and give the opportunity to grant education. Generally, third parties or even the Court of Justice are seldom involved in treating a child because his/her parents will look after him/her with good intentions as every parent should do.

In reference to an order from the Court held on the child custody case that he/she will be subjected to custody either to the mother or father. The Court will consider the consider to the welfare and the benefits of such child. This case will arise arisen when the parents are getting divorced. If divorce by mutual consent, the spouse shall make an agreement in writing for the exercise of the parental power over a child either by a Divorce Agreement or by Settlement Agreement.

If there is no condition relating to this matter in the agreement, it shall be decided by the Court. Furthermore, in case of divorce by judgment of the Court, the Court shall also order that the parental power over a child.

When dealing with Child Custody cases or Divorce Cases, the lawyer must be able to see through the situation and that lawyer must make a good strategy to ensure that the court will side on the client’s interest regardless of whether he is a foreigner or not. Our lawyers have handled numerous cases related to Child Custody cases and particularly involving a Foreigner as the father of the child. We are confident that our many years of experience can guarantee the best outcome for our clients.

Child Adoption
Child adoption in Thailand is a very complex process that essentially removes the parental rights and responsibilities from a child's natural parents and reassigns them to adoptive parents.
The Thai government agency that oversees all adoptions is the Child Adoption Center of the Department of Social Development and Welfare (DSDW). Thai law addresses two types of adoptions: Domestic adoptions are available only to adoptive parents who reside in Thailand.Inter-country adoptions, on the other hand, are available to foreigners who wish to adopt a Thai child and intend to raise the child outside of Thailand.
It is required by Thai law that an applicant who wishes to become an adoptive parent should be eligible under the following qualification;
has a spouseis at least 25 years of ageis at least 15 years older than the childThe spousal condition does not apply if the applicant is Thai.

Adoption in Thailand for Foreigners
A foreign applicant is required to meet the legal conditions for adoption set out by their home country. The country must have diplomatic relations with Thailand. The applicant may deal directly with an approved adoption agency in their home country. That agency may then submit application documents directly to the DSDW or to one of four non-governmental organizations (NGOs) that have been authorized to directly place Thai children with overseas adoptive parents. These organizations are the Thai Red Cross, the Holt Sahathai Foundation, the Friends for All Children Foundation, and the Pattaya Orphanage in Chonburi.
In some cases, foreigners can apply for child adoption in Thailand. In the first instance, a foreigner who resides in Thailand and has proof of residency and house registration can submit an adoption application in the area where they reside.
In Bangkok, this is the Child Adoption Center of the DSDW. Outside of Bangkok, the application would be submitted to the provincial DSDW office. A foreign applicant residing temporarily in Thailand and having a work permit issued by the Labor Department may apply for adoption in Thailand if certain other conditions are met.
The applicant must have been residing in Thailand for a minimum of six months prior to making the adoption application and be able to complete the six-month pre-adoption placement residence in Thailand requirement. If the applicant meets these conditions they can submit the application, along with the required documents certified by their country's embassy in Thailand, to the DSDW.

Pre-Marital / Prenuptial Agreements
A pre-marital, or prenuptial agreement in Thailand is a written contract to protect each party in a marriage from the other's debt responsibilities that were incurred before the marriage and to secure each party's personal assets acquired before the marriage.
Under Section 1465 of the Civil and Commercial Code of Thailand: “Where the husband and wife have not, previous to their marriage, concluded a special agreement concerning their properties, the relations between them as regards to their properties shall be governed by the provisions of this Chapter.
Any clause in the anti-nuptial (also called prenuptial) agreement contrary to public order or good morals, or provided that the relations between them as regards such properties are to be governed by foreign law shall be void.”
It may also make provisions for child and spousal support should the marriage end in divorce. Both parties must sign the pre-marital, also known as a prenuptial agreement, and it must be registered when the marriage is registered. If this does not occur, the pre-marital or prenuptial agreement may be considered invalid in Thailand.
The parties must sign the agreement in front of two witnesses before their marriage is registered, and the pre-marital or prenuptial agreement must be registered at the same district office where the parties register their marriage in Thailand.
A pre-marital or prenuptial agreement also protects the interests of other dependents, such as children from a previous marriage or parents, as the arrangements for the disbursement of a party's personal property can be stipulated in the agreement. This is not the case, however, for properties that are jointly owned by a couple after they are married. The agreement can result in a more smooth division of assets during a divorce as it typically outlines the provisions for spouse and child maintenance as well. With these provisions in place, a pre-marital or prenuptial agreement can avoid the addition of further emotional strain during a divorce, and considerably reduce litigation costs.

Summary

Experienced attorneys in the Juslaws & Consult Family Law Practice advise clients on all aspects of marriage and divorce, including premarital or prenuptial agreements. Our professionals have extensive experience in drafting this type of contract, taking into consideration requirements under Thailand's laws and the legality of the agreement overseas.
Advice from a Thai lawyer familiar with the laws governing pre-marital or prenuptial agreements in Thailand and in the client's home country is essential. Thailand's Civil and Commercial Code contains a number of requirements that must be addressed when preparing a pre-marital or prenuptial agreement. So please don't hesitate to contact us to help you.