This article focuses on ‘a Lawful Spouse’ but it also gives good information for an unlawful spouse.
A lawful spouse means a legal marriage according to the law of the country of the marriage. No matter if they are foreigners or Thai, no matter where they are married. When the marriage is made in Thailand it must be registered with the Family Department at the District office. 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 the marriage 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).
At this point, my personal opinion, the same sex marriage is a lawful spouse under Thai Law that even Thai Family law does not allow marriage between the same sax but this case shall be subject to the said sections of the Conflict of Laws Act.
For a lawful spouse, there are many interesting legal matters under Thai Family law. This article, we focus on 2 Kinds of Agreement Concerning the Property of a Lawful spouse.
Special Agreement Before Marriage
If you are a lawful spouse, your right and duty to manage a property during marriages shall be governed by the Thai Family Law. However, the law allows you to decide concerning a property during the marriage the way they want. But you need a Special Agreement before marriage. This Agreement is subject to the condition of validity, it must be registered with the Family Officer, the terms and conditions of the agreement must not be against public order or good morals. This Agreement is not allowed to be governed by a law of another country. Importantly, when this Agreement is made, it can NOT be changed or terminated without a Court order (section 1465 to 1467 CCC).
This means, if a lawful spouse did not make the said Special Agreement before the marriage. The management of their ‘Property’ shall be governed by the Thai Family Law. It means they are free to manage their ‘Private property’ but some of ‘Marriage Property’ shall be jointly managed or obtain the consent from the other i.e.(i) sale, exchanging, sale with the right of redemption, hire-purchase, mortgage or release/transfer the mortgage, servitude, superficies and usufruct of Immovable property. (ii) Lending money (iii) Make a compromise agreement. (iv) submit a dispute to the Arbitration Center etc.
Whenever, either a husband or a wife has entered into those example agreements with a third person without joint management or without consent of the other. Such Agreement may be void by a Court order, either husband or wife may request such Court order within 10 years from the date of making such Agreement (sections 1476 and 1480 of CCC).
Agreement During Marriage
Whenever a lawful spouse enters into an Agreement ‘between themselves’ concerning their property during their marriage. Both of them, a husband or a wife may terminate such an agreement at any time they want during their marriage. They also have a right to terminate such an agreement within one year After Divorce! But this does not affect a Third person who acts in good faith. (sections 1469 and 1480 of CCC)
Why? As you may know that normally, to protect the party’s benefit under the agreement, whoever enters into 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 is when a husband and wife make an agreement between them during their marriage, 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. These are due to family relationships in Thai culture.
It is very challenging for a lawyer. If one of them can clearly prove 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? Unfortunately, there is no precedent case yet. In this case,
Generally, 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 prevent the possibility of void of the contract.
Finally, if you are not a lawful spouse. It doesn’t mean you are free to manage or free to make an Agreement with a third party concerning the property you and your partner together build/make/create. The Co-Ownership Law shall be applied to this case for fairness reasons.
Thank you for reading.
Article By Akenarin Thongplod
Thai Barrister at Law
Notarial Services Attorney