What is a Prenuptial Agreement?
A prenuptial agreement, often referred to simply as a "prenup", is a written document made by two people before they get married. It typically states how the couple will divide assets and income, as well as settle debts in the event of divorce, separation, or the death of one spouse. A prenup can be a useful way for couples to clarify complex financial arrangements before starting out on a long-term commitment.
In Thailand , prenups are recognized as legally binding agreements that can help determine how assets and liabilities are handled during a marriage or in case of divorce. They can also make arrangements for spousal support or alimony in the event of a marriage breakdown, common law considerations, and inheritance for children from previous relationships. However, they must meet certain legal requirements to be enforceable.
The decision to enter into a prenup is personal, and each couple’s circumstances will determine whether it is the right choice for them. It is important to have a full discussion with a legal expert and your partner before making any decisions.
Thailand Legal Requirements
A prenuptial agreement is a formal contract that both the husband-to-be and the wife-to-be enter to determine what they will own it and how they will divide their property should they separate or divorce, or should one of them die. In Thailand, for a prenuptial agreement to be valid, it must be in writing and signed by both parties with the presence of two witnesses. Additionally, if the parties marry in Thailand, the prenuptial agreement must be registered in accordance with Section 1463 of the Civil and Commercial Code of Thailand.
Note that the mere entering into a prenuptial agreement before marriage does not impact ownership or division of property after marriage. However, unless and until the prenuptial agreement is registered, third parties dealing with either spouse may not be bound by the provisions of such prenuptial agreement. Once registered, then the provisions of the prenuptial agreement would apply and be enforceable against third parties.
Section 1472 of the Civil and Commercial Code of Thailand expressly contemplates the use of legal counsel by both parties to the agreement. A prenuptial agreement is part of a marriage contract under Thai law. A marital contract must be in writing under Section 1463 and so the usual rules for private autonomy apply.
In such agreements both husband and wife have the right to designate their respective property as separately owned property with full rights to dispose as such, or as jointly owned. While under Section 1472 the intention of the parties must be "clearly" stated, generally any language that is clear and unambiguous should qualify.
Benefits of a Thai Prenuptial Agreement
Prenuptial agreements in Thailand can be particularly beneficial for people who have large assets before marriage, or have large amounts of accumulated debt. They give a clear indication of how assets or liabilities will be dealt with in the event of a divorce. It can also help to avoid any confusion as to the ownership of certain items such as businesses, or contracts where one party is involved.
Having a premarital agreement can help to protect both parties. In the case of a divorce, it will allow for a more amicable end to the marriage, and for a faster resolution of outstanding issues, as everything has been previously agreed and documented.
It is worth noting that courts in Thailand do not recognize post-nuptial agreements. This means that any amendments to the agreement would need to be signed before the marriage begins.
Typical Clauses in Thailand Prenuptial Agreement
In Thailand, a prenuptial agreement, or "sangseuk," is a legal contract between two people intending to marry. It is typically signed before the wedding ceremony, although not all couples consider it necessary. With any agreement of this sort, disclosure of assets and financial information is required from both parties. Furthermore, there are a few terms and conditions that commonly appear therein.
The assets acquired after marriage are generally considered marital property. However, the property owned prior to the marriage is considered separate property unless otherwise stated in the prenuptial agreement. Traditionally, these agreements not only define the assets of each party, but also include provisions regarding matters such as alimony and child support. The idea is to protect the interests of both spouses while making the terms of the marriage clearer in the future.
The most common clauses found in a Thai prenuptial agreement concern the division of assets, amounts owed to each party in the event of divorce, and alimony payments. The agreement may also include provisions to protect pre-marital assets, such as inheritance or property, for each spouse. There are also sections that often address rights and duties during the marriage, such as the right to manage affairs and whether separate property can be sold without the consent of the other party.
Because a prenuptial agreement is a contract, it may not be possible to modify the terms unless both parties agree to the changes. More importantly, there are some restrictions on what can be covered in the agreement. For instance, clauses that are extreme in one party’s favor, or that could harm a child’s rights, may not be enforceable.
In a properly drafted and executed prenuptial agreement, the specific details will specifically reflect the circumstances of each case. For example, the property rights may be different if either spouse brought substantial pre-marital assets to the table. The language may also be different if there are children involved in the relationship.
After the wedding, a prenuptial agreement remains in effect unless a court determines otherwise. Again, however, it is important to note that each prenuptial agreement may vary. For informed guidance when drafting or entering into a Thai prenuptial agreement, consider consulting an experienced Thailand family law attorney.
Common Challenges
Challenges and Considerations for a Thai Prenuptial Agreement
Like any agreement, a prenuptial agreement is best entered into with complete consideration and understanding by both parties and creating a prenuptial agreement in Thailand is no different. There are various issues to consider as well as pitfalls to be avoided when it comes to creating the agreement.
A factor to consider when creating a prenuptial agreement is the question of its content. Clearly, a prenuptial agreement should contain some type of disclosure regarding the assets and finances for both members of the couple. A prenuptial agreement usually must be fair to each participant. Effectively, both parties need to be willing to agree as to the terms of the prenuptial agreement.
If one person wants to agree to a certain set of terms without negotiation or acceptance by the other party, the prenup probably should not move forward. As with any contract, the terms of agreement should be arrived at mutually with the understanding that each party can walk away from the agreement at any time before signing it .
Another danger with prenuptial agreements is failing to update them as time passes. As the relationship moves forward and each member of the couple begins to accumulate certain assets or money, such assets should be added in an addendum to the contract. The purpose of a prenuptial agreement is to go into effect only when the marriage breaks down, and not any time before. This means that the prenup should be consistent with how the couple lives before the marriage ends. Changes in dealings and the acquisition of debt and property are part of the reality of living together. For these reasons, regularly updating the prenuptial agreement is crucial.
Creating a prenuptial agreement in Thailand can be a challenge in and of itself. A third party – such as a family member or attorney – should be involved in handling the prenuptial process. An experienced attorney can help both individuals navigate the creation of the prenuptial agreement.
How to Draft a Prenuptial Agreement
Most importantly, detailed discussions between the parties are required to establish the nature and extent of all possible asset ownership they wish to address in the agreement. The parties then consult with their respective lawyers about the proposed agreement. This is an essential step, as failure to disclose relevant details can result in the agreement being voided later on. Involving separate legal counsel also avoids any conflict of interest or claims of impropriety. After both parties have been properly advised of their legal rights, the agreement is finalized, and both parties sign it to enforce the terms therein.
Thai Prenuptial Agreement FAQ
Some frequently asked questions on prenuptial agreements in Thailand
What are the requirements for a prenuptial agreement? Generally speaking, both parties must be able to enter into a contract. Parties should seek their own independent legal advice and the agreement must be registered at the local registration office (Amphur) in Thailand before the marriage takes place.
Can you divorce the Thai party less than one year after the marriage? A divorce can be agreed if both parties want it. Practically this does not mean that a divorce can be obtained in that first year though.
Can the terms of your prenuptial agreement be changed after marriage? A prenuptial agreement is intended to be legally binding. However, the parties can agree to vary the terms by way of a Post Nuptial Agreement following the marriage.
What if you don’t know what property the Thai party has? It is your choice whether you wish to find out or not. In the case of a divorce, debts and assets acquired before the marriage are treated differently to those acquired during the marriage. It is important to understand how this will affect you and so where possible it is best to be clear before signing a prenup . The Court will follow Thai law in deciding who owns what in the event of a divorce. You cannot ordinarily change the law which applies simply by putting it in a contract. Thai law does allow for choice of law in relation to property matters but parties cannot override the laws on the formalities required for the marriage ceremony.
What is the position for foreigners who marry in Thailand? The marriage would normally be entered into in accordance with Thai law. Consent of parents is not normally required for an adult to marry in Thailand but any foreigner will need a ‘certificate of no impediment’ (or similarly named document) before the marriage can go ahead. The certificate is obtained from their Embassy or Consulate in Thailand.
What are the consequences for breaking a prenuptial agreement? The Court will enforce the agreement where it is valid and complies with formal requirements. A party seeking to change the agreement will bear the burden of proving that something has gone wrong, such that the agreement should not be followed. Where the Thai party is under 17 (the Thai marriageable age) at the time of the contract, the Court may refuse to enforce it.