One of the classic dispute stories between spouses is ‘Property Dispute’. In order to avoid this kind of dispute, if you are in Phuket or somewhere else in Thailand. It is good to understand how Thai law works about Prenuptial Agreement (Ante-Nuptial Agreement) and Postnuptial Agreement.
First, in this article ‘spouse’ means a lawful spouse who has married according to the law of the country of the marriage. No matter whether they are foreigners or Thai, no matter where they are married.
For example, the marriage in Thailand must be registered with the Family Department. When the marriage is made abroad it must be according to the law of the country the marriage is made. In option, the marriage between a Thai and a Foreigner which is made abroad can be register at the Thai Royal Consulate at this country too. In accordance to Section 1457 and 1459 of Civil and Commercial Code (CCC), and Section 19 and 20 of the Conflict of Laws Act B.E. 2481 (1938).
How Prenuptial Agreement (Ante-Nuptial Agreement) and Postnuptial Agreement works in Phuket?
PRENUPTIAL (ANTE-NUPTIAL) AGREEMENT
Principally, if you are a lawful spouse who is living in Thailand. Your rights and duties to exercise and manage your property during your marriages shall be governed by the Thai Family Law. Property is divided in two categories, the separate property or personal property (Sin Suan Tua) and the community property or join common property (Sin Somros).
Section 1471 CCC stipulates that the separate property are;
(1) property belonging to either spouse before marriage.
(2) property for personal use, dress or ornament suitable for station in life, or tools necessary for carrying on the profession of either spouse.
(3) property acquired by either spouse during marriage through a will or gift.
(4) the property being the engagement gift (Khongman).
Community property is all not include in separate property (Section 1470 CCC).
Thai family law stipulates that both husband and wife are free to exercise and manage the ‘Separate property’. But, some contract between husband or wife with a third person’ in relation to the ‘Community Property’ shall be jointly exercised and managed or having obtained the consent from the spouse i.e. (1) sale, mortgage, servitude, superficies and usufruct of the immovable property. (2) Lending money (3) make a compromise agreement. (4) submit any dispute to the Arbitration Center etc.
Such contracts which have been made without joint management or without consent of the other may be void by the Court order. Either husband or wife may request such Court order within 10 years from the date of such Agreement (sections 1476 and 1480 of CCC).
However, the Thai family law allows husband and wife to decide how to exercise and manage your property in a different way by the Prenuptial Agreement.
Prenuptial Agreement is subject to the condition of validity as following,
(1) it must be registered with the Family Officer.
(2) its provision shall not be against a public order or a good morals.
(3) it is not allowed to be governed by a law of another country.
If not, the Ante-nuptial Agreement is void. Important note is when the Ante-nuptial Agreement has been made, it can NOT be changed or terminated without a Court order (section 1465 to 1467 CCC). In other words, if a spouse did not make the ‘Prenuptial Agreement’ before the marriage. All rights and duties to exercise or manage the ‘Separate Property’ and the ‘Community Property’ shall be governed by the Thai Family Law.
After marriages, the Postnuptial Agreement may be made. Either husband or wife may terminate such an agreement at any time before divorce or within one year After Divorce! However, a third person who acts in good faith is protected (sections 1469 and 1480 of CCC).
In principle, to protect the party’s benefit, an agreement shall not allow the termination without consent of the other party or there is a law that allows the termination.
Why Thai law allow such termination? The idea comes from Thai culture that a man always has more bargaining power than a woman. Law thinks that when a husband and wife make a Post-nuptial Agreement. One of them may not have free and clear consent for decision, one of them may leverage over another, one of them may not have bargaining power.
Free and clear consent of the parties is a compulsory condition of making a contract under Thai law. The declaration of intention shall be made without one of them having leverage over another. You may be interested to read about how to make a contract under Thai Law to avoid the possibility of void of the contract.
It is very challenging if one of a husband or a wife can clearly prove to the Court without any reasonable doubt that both of them have an equal leverage, an equal bargain power, free and clear consent at the time of entry into the agreement. Would such an agreement be voidable? No precedent case yet. In this case. Thus, in order to avoid future challenges that may arise regarding the validity of Ante-nuptial Agreement, your best bet is to ensure that the Agreement is made correctly.
Finally, if you are not a lawful spouse. It doesn’t mean you are free to exercise and manage the property that you and your friend together build/make/create. The Co-Ownership Law shall be applied to your case for fairness reasons.
Couples, legally married or not, come often with drama during the relationship and more at the end and the best way to settle this is prevention. If you are in need of a family lawyer, or for more information, we can help, just feel free to contact us at any time.