But if you are sure that you just need the marriage registration without Prenuptial Agreement, you can learn about process of register marriage from here to make you more understand in bird’s-eye viewmarriage registration in thailand
Prenuptial Agreement Thailand
Prenuptial Agreement Thailand
In this article, you will know all the information about Prenuptial Agreement Thailand including the relevant family law that is implied with this matter.
And we also brought up some example or study case that will make you understand more and will guide you on how to prepare the agreement properly.
This article is written by a Family Lawyer who is expert in Thai Family Law to ensure that you will have correct and clear information.
The Prenuptial Agreement Thailand or Pre-Marital Agreement is an important thing that you should consider before you register marriage.
Because you will never know what will be happening with your marriage time and/or divorce time. So, you should make all things clear about property in order to avoid argument with your spouse during marriage time or even divorce time.
Because aside from Prenuptial Agreement and Marriage Registration, we also handle divorce case.
And we always hear our clients from divorce cases say that why he did not realize earlier to do the Prenuptial Agreement.
That’s because they are in honey moon time and/or they trust their spouse too much.
In short, love makes them blind.
So, even if you will proceed with the Prenuptial Agreement Thailand or not, we suggest you to read information below to keep in your mind first.
Table of Content
- Getting to know about the property system in Thai Family Law.
- What is the Prenuptial Agreement Thailand.
- How to do the Prenuptial Agreement Thailand.
- Process of Changing the provisions in the Agreement.
- Checklist for Preparing the Prenuptial Agreement Thailand.
- Ten things you need to know about Prenuptial Agreement Thailand.
1. Getting to know about the property system in Thai Family Law.
Under Thai Family Law, we allow husband and wife to choose the property system that are suitable for their family.
We divided it into two systems as follows:
- Property System by their own agreement or we can call Regime Conventional.
- Property System by Law or we call Regime Legal.
Or you can see the photo below:
Because the relationship among husband and wife about property is very important for the consideration of the happiness within the family, that’s why the law allows them to choose their own system.
You should understand that the Agreement system is the exemption of the Legal System.
That means if the couple did not do the Prenuptial Agreement Thailand, the method to manage the property during marriage time and divorce must follow the Thai Family Law automatically.
If the Prenuptial Agreement stated that “during marriage, the wife can sell the land without consent from the husband”, this will be effective and the wife can sell it by her own decision only.
2. What is the Prenuptial Agreement Thailand.
You can find the general meaning of Prenuptial Agreement from this link: General Meaning.
However, to make it easy for you here is the meaning.
The Prenuptial Agreement Thailand is the provision or the agreement that the couple who willing to register marriage has agreed on how to manage or divide their own individual property. And this agreement can be implemented instead of using the provisions in Thai Family Law.
Here is the code:
Section 1465. 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.
That means if you not do the Prenuptial Agreement Thailand, your relationship about property with your spouse must follow the provisions under the law.
But if you have done the Prenuptial Agreement Thailand, your relationship about property with your spouse must follow the terms and conditions set upon on the Agreement.
The Prenuptial Agreement must be related to the property system between husband and wife or how to manage the property during marriage only.
You cannot make agreement in other subject like custodian, divorce etc.
Example 1: If the Prenuptial Agreement stated that after divorce the wife will get all “Marriage Property” and the husband will not get it, this provision will not be enforceable (refer to the Supreme Court Judgement no. 195/2564)
Example 2: If the Prenuptial Agreement stated that the wife will have sole custody of the child, this provision will not be enforceable. Because it is not relevant to the “Property”.
And if the agreement is contrary to the public order or good morals it shall be not enforceable as well.
Example: The agreement stated that if the husband travel with other lady, the wife can file for divorce. This shall be voided.
Example: If the Prenuptial Agreement stated that after marriage, the husband has no responsible to take care of the wife. Or the wife can receive allowance from husband 100USD per year. This agreement will be voided as it is likely the husband just treats the wife as a prostitute which is contrary to good morals. (refer to judgement of Supreme Court of Colorado 87 Colo 149 : Popham v. Duncan 1930)
Moreover, for the Prenuptial Agreement Thailand you cannot specify the use of the law of other country. Because our Family Law’s draft is based in Thailand culture since Ayudhaya period.
3. How to do the Prenuptial Agreement Thailand.
Here is the Thai Family Law that stated about how to do Thailand Prenuptial Agreement:
Section 1466. The ante-nuptial agreement is void if not entered in the Marriage Register at the time of marriage registration terms of the ante-nuptial; or if not made in writing and signed by both spouses and by at least two witnesses and entered in the Marriage Register at the time of marriage registration stating that the ante-nuptial is thereto annexed
As above section, you have 2 ways to do the Prenuptial Agreement Thailand:
- Inform the terms and conditions that is relevant to the property to the Registrar on the time that you do Marriage Registration; or
- Prepare Prenuptial Agreement in advance signed by the parties and two witnesses. And give the agreement to the Registrar on the time of the Marriage Registration. And the Registrar will record that the spouse have prenuptial agreement in Marriage Registration Certificate.
Most likely, all couple follows the second way. Because the couple can have time to consider the agreement before signing it.
And If you are Non-Thai, we suggest to follow the second option as well. Because we can prepare English and Thai Version of Prenuptial Agreement Thailand in advance.
And must note that the witnesses in the Agreement must be the different person with the witnesses on Marriage Registration time. (because you also need 2 witnesses on marriage registration)
The parties has made the Agreement stated that “the rental income from condominium is the individual property of Male Party”. But this agreement was not given to the Registrar on the time of Marriage Registration. So, this agreement is not considered as Prenuptial Agreement and such rental income deemed as the Marriage Property of husband and wife.
Tip: For British Citizen, you must Complete Prenuptial Agreement before taking it to register on Marriage time at least 21 days.
4. Process of Changing the provision in the Agreement.
As the principle, once you complete the Prenuptial Agreement, it will be effective with both parties forever. Unless, you get consent from the court.
And it is very difficult that the court will consent.
Note: If you have not registered marriage yet, you can change the provision in the Prenuptial Agreement any time before recording it in the Marriage Certificate.
Here is the section that mentions about changing:
Section 1467. After marriage the ante-nuptial agreement cannot be altered except by authorization of the Court.
When there is final order of the Court to affect the alteration of cancellation of the ante-nuptial agreement, the Court shall notify the Marriage Registrar of the matter in order to have it entered in the Marriage Register.
If the parties change the condition by themselves without the court’s consent, it is deemed that the Prenuptial Agreement has not been changed.
The reason that the law stated like that because love is unconditional and has no limit and it means that one party may under be infatuation with another party which may affect the love and bond of each party according to their consideration with each other.
So, the court need to consider it as well first.
5. Checklist for Preparing Prenuptial Agreement Thailand.
In order to prepare Prenuptial Agreement Thailand, you should prepare the information as follows:
- Passport and/or Thai ID Card of the parties.
- Passport and/or Thai ID Card of two personal witnesses.
- List of assets that you reserve to be your individual property. Here is the most popular:
- Title deed.
- Bank Account detail (no need to mention amount)
- Mutual Fund.
- Stock in the listed company.
- Share in the private company.
- Intellectual Property.
d. The benefit that you will earn in the future like income from Retirement Plan or from Social Security etc.
Then the lawyer can draft the Prenuptial Agreement to secure your benefit during and/or after marriage.
If you need to read information about Divorce, you can read it from here to understand what process is : Divorce in Thailand
6. Ten things you need to know about Prenuptial Agreement Thailand.
- A Prenuptial agreement Thailand is a private agreement between a couple signed before they get married which sets forth the division of their assets in the event of divorce or death.
- The agreement has to be fair, the parties have to fully disclose their assets, and the parties each need their own attorney.
- Circumstances dictate fairness. The idea of fairness depends on the unique facts and circumstances surrounding each couple.
- Full disclosure is required. Typically, the parties also have to fully disclose their assets. That is not hard to do here since one can google each of the parties and find out their estimated net worth, in Thailand, marriage with foreigners are usually the ones who engage into a prenuptial agreement.
- Get your own counsel, Couples should each have their own attorneys to represent them regarding the prenuptial agreement.
- Think ahead. Presenting your intended with a prenup the week before the marriage is not good practice. For that reason, the idea of a prenup should be raised long before the marriage.
- Premarital assets are usually off limits. Prenups often state that any assets brought into the marriage remain that person’s separate property. however, each prenuptial agreement is tailored to the couple’s unique assets and the terms they agreed to.
- Setting the terms for alimony. In most instances, the agreement will either waive alimony or not address the topic. If alimony is waived, it means that one party cannot seek alimony from the other in the event of divorce.
- Till death do us part. Most prenups will allow each party to leave their separate property to whomever they want, while requiring some provisions for the surviving spouse.
- Children are off the table. A prenuptial agreement cannot provide for or limit child support or rights related to children. Courts and legislatures do not let couples bargain away the rights of their children.
You need to understand the legal perspective about Prenuptial Agreement Thailand to make sure how to complete it and make it enforceable under Thai Law.
Because our Family Law drafting base on Thai culture which is totally different from the Western Culture.
Please also highly note that the Prenuptial Agreement Thailand must use terms and conditions that must be valid and enforceable. It is must not be contrary to public order or good morals in its content.
You must give the Agreement to the Registrar on the Marriage Registration time.
And don’t forget to take one copy back.
Finally, if you need someone who has expertise in the Prenuptial Agreement Thailand to assist you for drafting or consultation, we at Siam Attorney International are always ready and on standby to help and assist you.
Please contract us via any channel.
And you can also have VDO call via Whatsapp for primary discussions with us.