Divorce. Divorce in Thailand History of Divorce...

Divorce

Divorce in Thailand
History of Divorce



Divorce in Thailand has many implications. Looking back in history, divorce has long existed in civilizations, dating back to at least ancient Mesopotamia. The ancient Athenians liberally allowed divorce but the person requesting divorce had to submit the request to a magistrate. The magistrate then would determine whether the reasons given were sufficient. Although liberally granted in ancient Greece, divorce was rare in early Roman culture. As the Roman grew in power and authority, however, Roman civil law embraced the maxim, “matrimonia debent esse libera” (“marriages ought to be free”), and either husband or wife could renounce the marriage at will.

Marriage was later considered to be within the realm of civil contracts and civil authorities gradually asserted their powers to decree divorces. Since there were no precedents defining the circumstances under which marriage could be dissolved, civil authorities relied heavily on the ecclesiastic courts.



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Although the common law courts gradually assumed the power to dissolve marriages, the concept of divorce gradually became considered contrary to public policy. Over the years, these courts garnered immense control over the issuance of divorce and these precedents were largely influenced by the rise and fall of public mores of the time.


Why people divorce



An annual study in the UK by management consultants Grant Thornton estimates the main causes of divorce based on surveys of matrimonial lawyers.


The main causes in 2004 were:

-Extra-marital affairs - 27%
-Family Strains – 18%
-Emotional/Physical Abuse – 17%
-Mid-life Crisis – 13%
-Addictions, e.g. alcoholism and gambling – 6%
-Workaholism – 6%

According to this survey, men engaged in extra-marital affairs account for 75 % of the cases while women accounted for only 25%. In cases of family strain, women were the primary source which cited strain as their cause with 78% compared to 22% in men.

Emotional and physical abuse was more evenly split with women affected in 60% and men in 40% of cases. In workaholism-related divorces men accounted for 70% of the total while women made up the other 30%.


The 2004 survey found that 93% of divorce cases were petitioned by women, very few of which were contested. 53% of divorces were of marriages that had lasted 10-15 years, with 40% ending after 5 to 10 years. The first 5 years are relatively divorce-free, and if a marriage survives more than 20 years it is unlikely to end in divorce.
Divorce in Thailand



Under the Thai Civil and Commercial Code, divorce in Thailand is permitted in two categories:

By Mutual Consent: If you were married in Thailand at a local Registrar office (Khet or Amphoe), you may register an administrative divorce in Thailand. Divorce in Thailand by mutual consent must be made in writing and witnessed by at least two persons. You will need to show your marriage certificate, passport and the national I.D. card of the Thai citizen. The process can be completed in only one day at the local Register Office. This type of divorce is possible only if the couple has no disagreements over such issues as children or property (“uncontentested”.) A divorce certificate will be issued by the registrar Office.

By Court Judgment: If the divorce in Thailand is contested and one party is not present; you should proceed to the courts for a divorce “for cause”. Either the plaintiff or defendant (or both) must be a resident of Thailand. There are 12 grounds for divorce under Thai law. We strongly suggest that you consult a legal professional in these matters. If you are overseas, you may appoint a lawyer to initiate the procedure on your behalf. However, once a court date is set, you must appear in court in Thailand. Any documents not in Thai will need to be translated and notarized by your embassy in Bangkok. This process can take up to one year. Divorce certificates are usually obtained from the court where the divorce was granted.

Grounds for Divorce in Thailand


If one party will not agree to a divorce by mutual consent then you need to file with the courts for a divorce. In order to proceed with a divorce in this instance you will need to assert grounds for divorce and make personal appearance in court. Grounds for divorce in Thailand include the following circumstances:

1. a 3-year period of separation
2. One spouse has deserted the other for over one year
3. The husband has taken another woman as his wife
4. The wife has committed adultery
5. One spouse is guilty of misconduct (criminal or otherwise)
6. One spouse has physically or mentally harmed the other
7. Lack of Maintenance and Support
8. One spouse has had incurable insanity for at least 3 years
9. One spouse has broken the bond of good behavior
10. One spouse has an incurable, communicable and dangerous disease
11. One spouse has a physical disadvantage so as to be unable to cohabit as husband and wife.


Marriage outside of Thailand



If you were married outside of Thailand, you can only divorce according to the laws of the country concerned. It is possible to file for divorce in Thailand but only under certain circumstances involve the laws in your country of marriage, no conflict with the law in Thailand, your residency and the grounds for your divorce.

How to Divide the Property


Normally, under Thai law, any property that either had at the time before marriage otherwise referred to as personal property, remains with that party even though without a Thai prenuptial agreement. Any properties that both parties accrued after marriage, which is termed, “conjugal property” will be shared on an equal basis upon divorce. The actual rules are naturally more complex and Thai courts will usually divide the property in accordance with the law as well as individual circumstances. It is highly recommended that you have a prenuptial agreement drafted before you decide to marry as this maybe useful in protecting your personal property as mentioned above.

Debts and Liabilities

Any debts and liabilities that were accrued after the registration of marriage will be shared by both parties.

Child Custody

In regards to child custody or guardianship of the child, any party in the divorce can mutually agree on the terms of arrangement. This should be made in writing and then registered with the Registrar who will record it on the Memorandum of the Marriage Certificate. In the event that both parties cannot come to a mutual agreement, either party may pursue the case in court seeking custody or the rights of guardianship of the child.

Maintenance

The basic principle is that spouses shall maintain and support each other according to his or her ability and condition in life. With that in mind, where the divorce is granted on the grounds of physical or mental health, the spouse affected on this ground may apply to the Court for authorization to live apart while the danger persists and in such cases, the court may order a certain amount of maintenance to be furnished by one of the spouses to the other depending on individual circumstances.


If one of the parties becomes insane, irrespective of whether he or she has been adjudged incompetent or not, and the other spouse fails to give proper maintenance to the insane spouse, a guardian may enter an action against the other claiming maintenance for the insane spouse, or apply for any order of the Court to protect the insane spouse.


In other words, the courts have a wide discretion whether to attach maintenance measures in divorces in Thailand.


How to Safeguard your Assets



Prenuptial Agreement

As it is often said, this agreement will let you determine in advance how your assets and debts would be handled in the event of dissolution of marriage. If you end up needing your prenuptial agreement to be enforced by the court, it is wise to make the agreement reasonable from the beginning (and therefore enforceable). For example, a provision of reasonable support structure for your spouse in the event of a divorce. This agreement defines the support limit, terms, amount and duration. If you left it up to a court, you would have little control over any of the terms.

Lease or Usufruct Agreement

When a foreigner along with his/her Thai spouse purchases land in Thailand, the foreign spouse must appear at the Land Department to sign a declaration stating that the funds used for the purchase belongs entirely to the Thai spouse. Therefore, the land is not part of any settlement should there be subsequently a divorce. In order for the foreign spouse to safeguard this financial investment in the property, a lease or usufruct agreement should be prepared allowing him the right to reside on the land. A lease agreement can be made for 90 years (initial registration of 30 years at the Land Department with two renewal periods). A usufruct agreement will allow the foreign spouse the rights to occupy the property either for 30 years or his lifetime. Under these two agreements, the foreign spouse will have his name recorded on the back of the Land Title Deed.

Conclusion

A divorce in Thailand is very difficult, and the financial and emotional costs can be devastating. One of the best predictors of a better divorce outcome is the couple’s knowledge and understanding of their options. Many people do not fully educate themselves prior to the proceedings; either because they don’t want the divorce, they are hurt and overwhelmed, or that they believe that they understand what is expected. The result is that they often make decisions without fully understanding the consequences, including the potential damage that those decisions will have on their lives and the lives of their children.