As almost everyone will marry at some point in their lives. Legal problems can occur for married people when separating or divorcing. People who do not have an official marriage can also experience legal problems with their former partners. With marriage there is the possibility of children, and the dreaded possibility of divorce. Divorce can be a very serious and traumatic event, especially when children are involved. Prenuptial agreements are becoming increasingly popular with prudent people who wish to save themselves from the trauma of a contested divorce. People who have a previous divorce are especially interested in prenuptial agreements as they have no intention of enduring another emotional and financially painful and protracted divorce. Child custody issues can be highly emotional. Many parents believe it is one the most important issues they will ever face.

A wise old friend once said that while the letter of the law may not always be clear, the intent of the law is always clear. Legal statutes, decision and briefs are often difficult for a layman to understand, and sometimes difficult for lawyers to understand as well. Occasionally, lawyers themselves will remark that a particular statue, decision or brief “is not a model of clarity”.  In this column we will always explain the law in layman’s terms. Nothing in this article is intended to provide legal advice. We strongly advise that you seek out and retain competent legal counsel for your legal matters.

It may come of no surprise to you that divorce rates in the UK and USA are some of the highest in the world. Couples between the ages of 20-24 have the highest rate of divorce with rates declining in each higher age bracket.

Many of us have always felt that we have a much greater chance of long term happiness with Thai spouses. US government statistics have now confirmed what many people have already reasoned for themselves: that there is a much lower rate of divorce among American’s with foreign born spouses. One might assume the same for the UK but we  haven’t seen statistics for this. Statistics show an average American/American divorce rate of 50%, and an American/foreign born spouse divorce rate of 20%. Some people are of the opinion that American/Thai and UK/Thai divorce rates may even be less than 20%.

In Thailand there are two types of marriages: one official and one unofficial. The unofficial marriage, which typically takes place at your Thai fiancee’s home in the village, can be interesting and entertaining. It starts early in the morning, includes a high volume parade  through the village, (to give notice to other suitors that a previously single man or lady is no longer available, and off limits) and you may even eat an egg during the marriage ceremony.

During a traditional Thai marriage ceremony it is customary for a man to compensate the parent (s) when marrying a daughter by paying a dowry or sinsod. This payment is intended to compensate for the loss of income the girl had been providing to the aged parent (s) who can no longer earn for themselves. Thailand does not have a system of social security that people can rely on in their retirement, so the loss of a child means the loss of a provider and in some cases the sole provider. Now some of you may be thinking that you paid a dowry but you are still supporting your spouse’s parents many years later. This is indeed quite common as most dowries can not realistically support people for very long.

The other type of marriage is the official registration of your marriage at a district office. Any district office in Thailand will register your marriage with presentation of the required documents.

This is the Marriage Registration process:

Step One:  Before the Thai government allows a citizen of a foreign country to marry a Thai citizen they must be provided with proof that the foreigner is free to marry (not already married to another person in the foreign person’s home country). Proof that is acceptable to the Thai government must be obtained from the foreign citizen’s embassy.

Most foreign embassies will provide their citizens with a document evidencing that they are free to marry. This document is most commonly referred to as an “Affirmation of Freedom to Marry” or “Freedom to Marry”

Typically, to obtain an “Affirmation of Freedom to Marry” from the foreign embassy there is one form that must be completed for persons who have not been previously married and two forms for persons who have been previously married. Some embassies combine it on one form. The requirements for supporting documents vary from embassy to embassy and can include: passport, long form birth certificate, divorce certificate, fiancee’ birth certificate, etc. You should call your embassy in advance to learn of their specific requirements and processing time.

The process of obtaining the “Affirmation of Freedom to Marry” can take 30 minutes to several days and varies from embassy to embassy. There is typically a charge of a few hundred baht to over a thousand baht.

Step Two:  The “Affirmation of Freedom to Marry” must be translated into the Thai language for presentation to the Thai government. The translations must be certified by a licensed translator.

Step Three:  The translated documents are taken to the Ministry of Foreign Affairs Legalization Division in Chang Wattana, Bangkok. The Legalization Division will verify the authenticity of your signatures and the embassy Seal.  The translations of the documents will be analyzed for accuracy and certified correct. Standard processing time is three days, however two hour premium processing is available for a slightly higher fee.

Step Four:  The next stop is the district office with a portfolio of all documents required by the Thai government and two witnesses for the legal marriage. The legal marriage is registered and both parties are presented with an original certificate of marriage.  The original marriage certificates should be kept in good condition as they will be required should you need to divorce. If you have a prenuptial agreement it must be registered at this time in order for it to be valid in Thailand. It is very helpful if the attorneys who represented both parties are present when registering the prenuptial agreement, otherwise the district office staff may not allow the registration of the prenuptial agreement.

Next Part of this family law in Thailand article series will focus on Prenuptial Agreements.

Group A: People who would like to protect their assets for their children’s future benefit.

Group B: People whose business partners do not want to be forced into being a business partner with your former spouse.

Group C: People who have worked all of their lives to accumulate enough assets to retire and who will not be able to re-enter the work force due to their age or health to start accumulating retirement assets again if a divorce wipes them out.

Group D: This group consists of people who have experienced a previous divorce that took years to complete and cost them everything they had and more. These people have suffered financially and emotionally and they don’t want to go through it again.

Let’s look at common scenarios:
Group A: These people have something they would like to leave their children. It could be a homestead, property of some type, investments, cash, etc. For our example we will look at a father who wants to leave his one and only child (his daughter) the family home, the home she grew up in. A beautiful stately old home on 25 acres. The home wasn’t expensive when he purchased it 30 years ago but with the new appreciation for this type of property and the improvements made to it over 30 years it now has a substantial value.

Community property laws state that his wife is entitled to 50% of everything he earns or acquires during their marriage. Most of this gentleman’s current income and future retirement income will be used to support himself and his new wife. 50% of his income can not be saved and set aside to pay his wife if and when they divorce. So he is painfully aware that his assets will need to be sold in order to provide her with the accumulated 50% of his earnings that he acquired during the marriage. Example: The gentleman earned $75,000.00 per year for each of the 10 years of marriage. In addition, the value of his property at the start of the marriage was 1 million dollars and has appreciated by 4% each year. The property has increased in value by $400,000.00 so his wife is entitled to 50% of that or $200,000.00. His earnings of $75,000.00 per year totals $750,000 over 10 years and his wife is entitled to 50% of that or $375,000.00. Total amount due his wife at the time of their divorce = $575,000.00. As stated above he has used his income for the last 10 years to provide himself and his wife with a modest quality of life. His current savings equals only $75,000.00 so the family home will need to be sold to obtain the remaining $500,000.00 to pay his wife at the time of their divorce.

Example using a prenuptial agreement: The prenuptial agreement states that the wife will be entitled to 5% of the husband’s net worth at the time of divorce for a marriage of 10 years. That both parties are capable of supporting themselves independent of the other so there will be no alimony. The husband’s net worth is $75,000.00 cash and the value of his home at 1 million dollars = 1,075,000.00 X 5% = $53,750.00. The wife is paid from the husbands savings and the home is saved for his daughter.

Prenuptial agreements are created for each party to unconditionally waive community property rights and rights to equitable distribution that would otherwise be enforced under the law at the time of divorce if there were no prenuptial agreement.

Thailand community property laws (similar to American community property laws) state that upon divorce your spouse is entitled to not less than half of everything you earned or acquired during the course of your marriage. The formula can be more complex than stated above, however this is the case when you are the sole earner.

For example: If you were married for 5 years and during that time the home you own (acquired before or during your marriage), appreciated in value by 2,000,000.00 baht, (based on 5% annual appreciation for a home purchased at 8 million baht) and you earned an annual salary of 2.2 million baht or $75,000.00 per year for each of the five years you were married, you would need to pay your spouse 6.5 million baht or $216,600.00 at the time of your divorce.

If you did not have this money available to pay your spouse the judge could order you to either turn your home over to your spouse, sell your home and pay your spouse off from the proceeds, or order you to move out and allow your spouse to live in the home while you continue to pay all related expenses. The later is a stronger possibility when children are involved, whether they are yours or not. If you don’t own a home or have enough equity in your home the court could liquidate your business assets, or attach your salary or other income. Many people feel that collecting on a court award, alimony or child support is not possible in Thailand. This is incorrect. The Legal Execution Department routinely collects awards by selling assets and attaching wages. It is interesting to note that Thai law prohibits attachment of more than 30% of your wages.

Under the above scenario you could also be ordered to pay alimony. This could be for an indefinite period or limited period. Alimony varies depending upon the individual circumstances, but is intended to maintain the lifestyle that you had previously provided your spouse during the marriage.

A pre-nuptial agreement protects your pension, savings, home, business, any and all property, belongings and cash you acquire before and during your marriage and protects you from paying alimony.

A properly constructed prenuptial agreement will stipulate that there will be no community property of the marriage, that both parties are capable of supporting themselves independently of the other and both parties waive any and all rights to temporary, rehabilitative, lump sum or permanent alimony or separate maintenance for support unconnected or connected with Dissolution of Marriage or support connected with Dissolution of Marriage or divorce either temporarily or permanently, or special equity in the other party’s separate property.

We would like to bring your attention to an interesting section of Thai Law: Thai law section 1469 states: any agreement concluded between husband and wife during marriage may be voided by either of them at any time during the marriage or at any time within one year of dissolution of said marriage; provided that the rights of third parties are not effected thereby.

How does this affect you?

Many foreign men title a house purchase in their Thai wife’s name as Thai law prohibits them from owning land in Thailand. They then have their wife lease the house to them for a period of thirty years. While this provides many gentlemen with the sense of security of having control of their house, in reality it is a false sense of security. The lease is not worth the paper it’s written on as it can be voided by the wife at any time as stipulated under Thai Law Section 1469. A properly constructed prenuptial agreement will have your future wife waive her rights to Thai Law Section 1469 and she will further pledge to uphold any contract or agreement she enters into with you before, during and after your marriage.

Who needs a prenuptial agreement?

While there are many very good reasons for having a prenuptial agreement let’s look at just a few groups of people who commonly use prenuptial agreements.

Group A: People who would like to protect their assets for their children’s future benefit.

Group B: People whose business partners do not want to be forced into being a business partner with your former spouse after she is awarded your business assets by the court.

Group C: People who have worked all of their lives to accumulate enough assets to retire and who will not be able to re-enter the work force due to their age or health to start accumulating retirement assets again if a divorce wipes them out.

Group D: This group consists of people who have experienced a previous divorce that took years to complete and cost them everything they had and more. These people have suffered financially and emotionally and they don’t want to go through it again.

Let’s look at common scenarios:
Group A: These people have something they would like to leave their children. It could be a homestead, property of some type, investments, cash, etc. For our example we will look at a father who wants to leave his one and only child (his daughter) the family home, the home she grew up in. A beautiful stately old home on 25 acres. The home wasn’t expensive when he purchased it 30 years ago but with the new appreciation for this type of property and the improvements made to it over 30 years it now has a substantial value.

Community property laws state that his wife is entitled to 50% of everything he earns or acquires during their marriage. Most of this gentleman’s current income and future retirement income will be used to support himself and his new wife. 50% of his income can not be saved and set aside to pay his wife if and when they divorce. So he is painfully aware that his assets will need to be sold in order to provide her with the accumulated 50% of his earnings that he acquired during the marriage. Example: The gentleman earned $75,000.00 per year for each of the 10 years of marriage. In addition, the value of his property at the start of the marriage was 1 million dollars and has appreciated by 5% each year. The property has increased in value by $500,000.00 so his wife is entitled to 50% of that or $250,000.00. His earnings of $75,000.00 per year totals $750,000 over 10 years and his wife is entitled to 50% of that or $375,000.00. Total amount due his wife at the time of their divorce = $625,000.00. As stated above he has used his income for the last 10 years to provide himself and his wife with a modest quality of life. His current savings equals only $75,000.00 so the family home will need to be sold to obtain the remaining $550,000.00 to pay his wife at the time of their divorce.

Example using a prenuptial agreement: The prenuptial agreement states that the wife will be entitled to 5% of the husband’s net worth at the time of divorce for a marriage of 10 years. That both parties are capable of supporting themselves independent of the other so there will be no alimony. The husband’s net worth is $75,000.00 cash and the value of his home at 1.5 million dollars = 1,575,000.00 X 5% = $78,750.00. The wife is paid from the husband’s savings and the home is saved for his daughter.

As always, nothing in this article is intended to provide legal advice. We strongly advise that you seek out and retain competent legal counsel for your legal matters.

In Part 2, Section 2 of this continuing series on Family Law in Thailand appearing in the nest issue of Pattaya Today we will focus on the specifics of Thai law as it relates to prenuptial agreements and how to talk with your fiancée about this delicate subject.

Thai law mandates the following with regard to prenuptial agreements:

If the parties have not entered into a prenuptial agreement they shall be governed by the provisions of the law. Said another way: a prenuptial agreement over rides written law that you would otherwise be subject to without a prenuptial agreement.

A prenuptial agreement may not contain provisions that are contrary to good morals. This area is open to interpretation. Some provisions of a prenuptial agreement could clearly be contrary to good morals while others may not be so clear. It is rumored that one celebrity prenup required the wife to sleep with her husband no less than once each week. Is this contrary to good morals? It is certainly part of a normal relationship, but making it mandatory may be seen as immoral.

A prenuptial agreement not registered at the time of marriage is invalid.

A prenuptial agreement must be made in writing, signed by both parties and witnessed by at least two persons.

Amendments can not be made to a prenuptial agreement unless authorized by the court.

What is considered community property or marital property and what is considered sole and separate property.

Sole and separate property:

Property belonging to either spouse before marriage.

Property for personal use or tools necessary for a profession.

Property acquired during the marriage by way of gift or inheritance.

Community property:

All property acquired by either spouse during the marriage.

Income, proceeds, appreciation and the fruits coming from the sole and separate property of either spouse.

Income and earnings that were acquired by both spouses during the marriage.

All marital property must be co-managed by both husband and wife unless otherwise stipulated in a prenuptial agreement, however either party may take legal action to maintain or defend the marital property for the benefit of the marital property.

A Certainty Agreement

Celebrities and wealthy people have had experience with prenuptial agreements for quite some time. One wealthy person who is also a celebrity, Donald Trump, refers to prenuptial agreements as “certainty agreements”.

He states that a prenuptial agreement gives you certainty, as it defines who gets what if you split. It prevents the endless litigation and the intense fighting that can often drag on for long periods of time. When we have a certainty agreement there will be no fighting, and because everything has been decided in advance we have a much better chance of retaining a friendship with our former spouse when we are no longer together. Having a cordial relationship with a former spouse is especially beneficial when you have children.

Talking about a prenuptial agreement with your fiancee

Prenuptial agreements can be difficult to talk about with the one you love, and there is nothing romantic about it. Many men are afraid to ask their fiancee to sign a prenuptial agreement. They think their fiancee will refuse to sign and call off the wedding. While this would be a terrible thing, there are worst things, like loosing all your money and your home. In my experience, our female clients who have a problem with the prenuptial agreement are ladies who are not interested in marrying for love. The majority of Thai ladies state that they will sign anything their future husband wants them to sign because all they really want is to be with him. We should run away from any lady who objects to signing a prenuptial agreement, and then open our eyes to her real motives.

You should explain to your fiancee that a prenuptial agreement is not wanted because you don’t love or trust her. You want a prenuptial agreement because of your love and your love extends even to the time when you may not be together. If you don’t stay together you want to be able to maintain a good relationship. If you do divorce the prenuptial agreement will be your settlement agreement. Everything has been decided in the prenuptial agreement so there will not be any fighting at the time of a divorce.

Divorce is often an intense adversarial process with no winners other than the lawyers. Lawyer fees will reduce or eliminate monies either party would be awarded. A wise person would take steps to avoid the vicious fighting that can take place during a divorce. A prudent person would take steps to avoid loosing everything they owned.

The reality is prenuptial agreements are designed to protect a less wealthy person rather than to hurt them. Inform your intended spouse that the prenuptial agreement will ensure that she will be cared for in the event of a dissolution of marriage.

Parents and children can often insist that you have a prenuptial agreement to protect their interests, family owned investments, or a family business. Inform your intended spouse that your family will not approve of your marriage unless there is a prenuptial agreement. This way it doesn’t look like the prenuptial agreement is entirely your idea.

Do not make your talk an emotional topic of discussion. Just be matter of fact about it.
Have the conversation when you are alone together, in a quiet place where you can be assured there will not be any interruptions. There isn’t a good way to start the conversation so, just jump in.

Example: I have been thinking about the things we need to take care of before the wedding and wanted to talk with you about a prenuptial agreement. I want to have one because of my family’s business. I need to make sure they will always be okay. It’s like having insurance to protected us and my family in the event something we can’t imagine now, were to happen in the future.

If you take the time to think about what you will say in advance and decide to make it a matter of fact type of discussion, while providing a valid reason for needing a prenuptial agreement as discussed above, you should not encounter any resistance if your intended spouse truly loves you. If you encounter heavy resistance you should seriously evaluate your intended spouse’s motives. We all need to know that the person we are marrying, is marry us out of love. For better or worse, for richer or poorer, in sickness and in health.

As always, nothing in this article is intended to provide legal advice. We strongly advise that you seek out and retain competent legal counsel for your legal matters.

Next Part of this family law series will focus on Divorce in Thailand.

In Thailand there are two ways in which you can divorce:

Uncontested divorce at the district office:

The simplest way is to divorce at the district office, any district office in Thailand can be used. This process takes about an hour. You must meet the following requirements: 1. First and foremost it must be an uncontested divorce. Both you and your spouse must agree to the divorce and all matters pertaining to the divorce, like the separation of your property and the care of your children. 2. You must have been married in Thailand and you must present both of your original marriage certificates. 3. You will need to bring two witnesses. 4. Thai persons ID card 5. Passport of foreigner.

Most first world countries require couples to use the courts for all divorce matters so the ability to terminate your uncontested Thai marriage quickly and easily at a district office without involving an attorney is most convenient and cost effective.

Contested divorce at the court:

A contested divorce requires you and your spouse to use the courts and the plaintiff must have an attorney.

The topic of this article necessitates a very frank and tough discussion because a contested divorce can be a very serious and difficult event.

If you are facing an impending and difficult divorce in Thailand and go to the internet you will not find any helpful information. The information available is published by law firms, all of whom seem to repeat the same information, some of which is silly and useless. This is a serious topic and you need serious people representing and protecting you. You have a lot to loose when property, money and children are involved.

Divorce is very intense. No other type of business or personal litigation comes close to the intensity. There is nothing worst or more vicious. It’s war. Common sense and fairness are lost when passions are running high.

Some people will tell you that divorce in Thailand is not like divorce in western countries, that it is not as contentious. Don’t believe it. The reason people get the feeling that divorce in Thailand is not as contentious as western countries is because the majority of Thai lawyers are not as aggressive as western lawyers. In reality the process can be just as intense as in western counties when the stakes are high and the lawyers are smart and aggressive.

The process of divorce is an inherently adversarial process. In Thailand you must have grounds for divorce. Very often these grounds require you to make your spouse look like a very bad person who has committed egregious acts against you. How can that be done without making the process adversarial, of course your spouse will want to defend themselves against such accusations. In addition, lawyers can manipulate the judicial system and provoke couples to wage war on each other with the intention of earning higher fees. While this isn’t as popular a practice in Thailand as it is in some western countries, it is fast becoming more popular and especially so with couples who have substantial assets and who are passionate about the care of their children.

Before you go to court for your divorce you will have no prior knowledge as to the abilities of your spouse’s attorney. It would be unwise to assume he/she will be a passive easy going person who resembles a potted plant in the court room. If you are wise you will prepare for a tough fight against a very smart and aggressive opponent. This means your lawyer needs to be the best. If your spouse already has the best lawyer you need the second best lawyer.

You must have one of the following grounds for a contested divorce in Thailand

• The husband has given maintenance to or honored another woman as his wife
• The wife has committed adultery
• One spouse is guilty of misconduct, whether or not such misconduct is a criminal offense if it cause the other party to be seriously ashamed, or to be insulted or hated or to sustain excessive injury or trouble due to the continuance of the marriage
• One spouse has caused serious harm or torture physically or mentally the other, or has seriously insulted the other or his or his/her parents, grand parents and ancestors
• One spouse has deserted the other for more than one year
• One spouse has been sentenced by a final judgment of the Court and has been imprisoned for more than one year if the offence committed is done without any participation, consent or in the knowledge of the other, and the cohabitation as husband and wife will cause the other party to sustain excessive injury or trouble
• The husband and wife voluntarily live separately for more than 3 years
• One spouse has been adjudged to have disappeared, or has left the domicile for more than 3 years and it’s uncertain if she or he is alive or dead
• One spouse has failed to give proper maintenance and support to the other or has committed acts seriously adverse to the relationship of husband and wife to such an extent that the other has been in excessive trouble where the condition, position and cohabitation as husband and wife are taken into consideration
• One spouse has been an insane person for more than 3 years continuously and such insanity is hardly curable so that the continuation of the marriage can not be expected
• One spouse has broken the bond of good behavior
• One spouse is suffering from a communicable and dangerous disease which is incurable and may cause injury to the other
• One spouse has a physical disability so as to be unable to permanently cohabitate as husband and wife
• If you were married in Thailand you can certainly divorce in Thailand. If you were married in another country but you are married to a Thai person you can divorce in Thailand. If you live in Thailand long term as a permanent resident or with a work permit you can divorce in Thailand. If your spouse is outside of Thailand and does not agree to appear in Thailand you can divorce in Thailand.

Spousal Support and Child Support

Another topic where there is much erroneous information is regarding spousal support or alimony. Some people will tell you that there is no requirement for spousal support in Thailand. This is false information. Spousal support and the amount of support is determined on a case by case basis. A spouse can request the court award a specific amount but the court will make the final determination as to whether spousal support will be awared and in what amount. It is common for a court to award spousal support to a wife of a wealthy husband when the wife has no skills or ability to support herself.

Children are entitled to the support of their parents and the court will almost certainly require parents to provide financial support for their children. The amount of support is decided on a case by case basis with consideration of the needs of the child or children and the parents ability to pay.

Failure to pay court ordered spousal support or child support will result in seizure of your assets or garnishment of your wages or both.

As stated above, divorce is a very serious matter that can change your life. If you are facing a contested divorce you need to take the correct steps to protect yourself.

Next Part of this family law series will focus on Asset Settlement in Thailand.

At the time of your divorce the court will determine which of your assets and liabilities are community property (Sin Somros) or sole and separate property of the individual parties (Sin Suan Tua).

You will retain your sole and separate property as is, but the community property of the marriage will be equitably distributed according to the law and your individual circumstances.

What is community property or marital property (Sin Somros) and what is considered sole and separate property (Sin Suan Tua).

Sole and separate property:

Property belonging to either spouse before marriage.

Property for personal use or tools necessary for a profession.

Property acquired during the marriage by way of gift or inheritance.

Community property:

All property acquired by either spouse during the marriage.

Income, proceeds, appreciation and the fruits coming from the sole and separate property of either spouse.

Income and earnings that were acquired by both spouses during the marriage.

At the time of dissolution of marriage the court will equally distribute the community property of the marriage to both spouses unless extenuating circumstances apply.

Section 1533: Upon divorce, the Sin Simros (community property) of the marriage will be equally divided between the man and woman

Let’s look first at how the debts of the marriage are handled under Thai law:

Section 1535: Upon termination of the marriage, the man and woman shall be liable for common debts equally.

Section 1490: Debts that both spouses are jointly liable to perform, shall include the following debts incurred by either spouse during the marriage:

(1)   debts incurred in connection with management of household affairs and providing for the necessities of the family, or for maintenance, medical expenses of the household and for proper education of the children.

(2)   Debts incurred in connection with the Sin Somros, community property of the marriage.

(3)   Debts incurred in connection with a business carried on by the spouses in common.

(4)   Debts incurred by either spouse for his or her sole benefit but ratified by the other spouse

Section 1491: If either spouse is adjudged bankrupt, the community property of the marriage is divided by operation of law as from the date of adjudication.

Section 1493: In case where the community property of the marriage has been disposed of, both spouses are liable to pay the household expenses in proportion to the amount of their respective sole and separate property.

Spousal Support or Alimony:

Section 1526: In the case of divorce, if the ground of divorce has derived from the guilt of only one party, and the divorce will make the other become destitute deriving insufficient income out of his or her property or business which used to be carried on during the marriage, the latter is entitled to apply for the living allowances to be paid by the party at fault. The court shall decide whether the living allowances will be granted or not by taking the ability of the grantor and the condition in life of the receiver into consideration.

Section 1528: If the party receiving living allowances remarries, the right to receive living allowances extinguishes.

Temporary Spousal Support and Child Support pending final dissolution of marriage

Section 1530: Where an action of divorce is pending, the court may, on application of either party, make a provisional order which it thinks proper such as those concerning the community property of the marriage, the lodging, the maintenance of the spouses, and the custody and maintenance of the children.

Alienation of Affection and Adultery

Section 1516 (1): Grounds for divorce: the husband has given maintenance to or honored such other woman as his wife. Or, the wife has committed adultery, the other spouses may enter a claim for divorce.

Section 1523: In the case of divorce by judgment of the court on the ground as provided in Section 1516 (1), the husband or wife is entitled to compensation from the husband or wife or another woman or adulterer, as the case may be.

The husband is entitled to claim compensation from any person who has take liberties

with his wife in an adulterous manner.  The wife is entitled to claim compensation from another woman who has openly shown her adulterous relations with her husband.

However, the husband or wife is not entitled to claim compensation if he or she has consented to or connive at the act done by the other party under Section 1516 (1) or allowed persons to act as provided in paragraph two of Section 1523.

Section 1525: The compensation under Section 1523 shall be decided by the court according to the circumstances, and the court may give an order for a single payment or payments in installments as may be deemed suitable by the court.

Now let’s take a look at the most important question: Is Thailand a community property country or does it employ an equitable distribution system.

Reading the laws alone is not sufficient to answer this question. It is only through the practice of law that one can have the knowledge to provide a clear answer to this important question.

Why is this an important question?  With community property laws your spouse is entitled to half of everything you earn during the marriage. With equitable distribution laws your spouse is entitled to half of the martial property that exists at the time of your divorce. Community property laws will normally cost you a great deal more money than equitable distribution laws.

To provide an example of community property laws: a famous Hollywood director earned 100 million dollars from a very successful movie during an eighteen month marriage. He was required to pay his wife half of what he earned or 50 million dollars.

Thailand is a community property country, but if the earning spouse can prove that the money earned during the marriage was substantially spent to provide for the other spouse and or the others spouses family then equitable distribution rules will apply.

While this is a legal article about child custody law, in fairness we need to first talk about how children suffer from the effects of divorce. We do this to encourage you not to fight over your children, to consider that your children have a right to a meaningful relationship with both parents, and to always think first of what is in your child’s best interest, both today and in the future.

Most people will agree that there is no more sensitive or emotional issue that one can face than a legal fight for their right to see and care for their children.

When parents are concerned about their ability to spend time with and care for their children during a divorce, legal wrangling can become quite intense.

One of the worst things that can happen is when an unscrupulous parent uses a child as a tool to punish the other spouse. This is one of the most heinous acts that can be perpetrated, but governments continue to allow it. Examples include:

Accusations of abuse. Withholding access to the children during periods of court ordered visitation. Speaking negatively about the other parent to or in front of the children. Making false accusations to obtain restraining orders, or leverage in the court.

In one of the longest divorce trials on record the wife accused her husband of abusing their child. His internet viewing history was presented as evidence of his predisposition to a perverted interest in minors. The individual websites were contacted and they reported the day and time the websites were viewed by his ISP. As it turns out the husband was outside of the country at the time the websites were viewed, and it was proven that the actual viewer of the websites was his wife. She attempted to frame him.

During an abuse investigation children are subjected to invasive medical exams and repeated psychological sessions that can actually result in the implanting of false memories, and leave emotional and psychological scars that may remain with and damage the child for life. The use of a child as a pawn of one parent to extract money or inflict pain in the other parent is child abuse. Sadly courts tolerate it, while some professionals feed on it and profit by encouraging conflict.

While abuse does take place, accusations of abuse during a contested divorce are often groundless. In almost all of these cases the person making the false accusation is never punished. While children should be shielded and protected from the manipulations of unscrupulous parents and so called professional, courts continue to just go along for the ride.  Most good people understand that trauma and abuse of children can take many forms.

The Children’s Rights Council is an organization respected for reasonable thinking, as well as their great accomplishments in child welfare. The (CRC) was incorporated in 1985 to ensure that children have continuing meaningful interactions with both of their parents regardless of their parents’ marital status.

Basic reading for any parent who is going through a divorce is CRC co-founder Joseph Levy’s  book “The Best Parent is Both Parents” and “Surviving the Breakup”, by Wallerstein and Kelly.

If you have children and if you ever find yourself going through a divorce, please take the time to read these books and ask your spouse to do the same. By reading “The Best Parent is Both Parents” you will understand why it is important for your children to have a meaningful relationship with your spouse even if you are not feeling very positive about your spouse at the time of your divorce.

“Surviving the Breakup” will educate you about the emotional and psychological impact of your divorce on your children. It will help you to understand what they are going through and the emotions they are feeling.

Child custody and the Thailand courts:

Thailand written law is remarkably brief with regard to the rights of parents and children when it comes to determining which parent will be awarded primary custody within the context of a contested divorce. As in other countries, a great deal of latitude must be given to judges to make decisions on a case by case basis.

As unfair as it may seem to loving and devoted fathers, the Thailand family court, like many courts in other parts of the world, has a predisposition towards awarding primary child custody to mothers. The courts allow witnesses to testify in favor of both mother and father with the intent of deciding placement with the best interest of the child in mind.

Maybe not so similar to other countries, in the Thailand family court, children of any age are given a voice as to which parent they would like to see awarded primary custody.

As one would assume Thai law does state that parents have the responsibility to provide proper maintenance and education for their children. Thai law also states that a non-custodial parent with limited parental rights and limited rights of visitation is not relieved from their duty to provide financial support to their child.

In practice it is uncommon for a Thailand family court to deny a parent access to their child unless there are extreme circumstances. Unfortunately, with the predisposition to award mothers sole physical custody, fathers are often only allowed access to their children as visitors on the weekends.

Parenting, resolving differences, and planning for your child’s future

It is vitally important to know that the example set by the parents will have a great impact both on life as a child, but also on patterning for how the child will resolve problems as an adult.

While the parents have major differences or obstacles between them such as matters of passion/ infidelity, financial upheaval, cultural incongruity or other irreconcilable differences, these problems between two agreeing adults should not be visited upon the child directly or via the fallout of a power struggle. Such would only develop more difficulty for the most innocent of people, children, and lead to regret for the parents.

Taking time to get professional counsel from both an interested attorney and also from involved counselors will give the parent more knowledge to better be able to cope with the changes ahead. Forging a new life situation for a child, with confidence, will give the child a much greater feeling of well being and confidence in the world.

What is important to your child’s development

For children the most vital things start with the basics, safety and health.

This can be and is often measured by the court in terms of the type of home/living space provided to the child, the job/income of each parent, and the support network of people living with or near the home.

Less measurable, yet recognized as vitally important is a child’s experience of love and social development.  This quality of a child’s life may be ascertained by direct observation and interview of the child and each parent / home.

Other considerations include education and insurance, as the general standards of education will be a sounding board compared to the options available to the child with each parent/home.

It cannot be ignored also that a child’s overall sense of well being leads to a more solid character development.  Parents who can give a child confidence building experiences give them the best footing for becoming effective adults.

The question of “which parent will have primary custody” can be decided either by the parents or by the court.  What this means is that parents may negotiate an out-of-court agreement regarding the child’s living situation, schedule at home/visitation, educational plans, financial responsibility for the day to day and the greater needs of the child.  If the parents are able to make such an agreement without the courts decision, they retain greater control over both present and future decisions to be made on behalf of their child (ren).

One of the blessings of living in Thailand is the ability of parents to use the district office to legally record a parenting agreement without the use of the courts.

If the parents are unable to make an agreement about custody and caretaking of  a child, then the matter will be decided by a family court judge.  The judge will base decisions on several formulaic factors, often relying on ‘expert’ testimony from professionals evaluators/psychologists, etc.  The input of these professionals carries great weight as the court can lean upon their professionalism to mitigate the court’s stand alone responsibility.   These professionals often make powerful recommendations based on interviews that took only a few hours yet will effect the entire outcome of a child’s life.

In order to avoid a one-size-fits- all plan for a child’s future that was subject to a standard set of considerations that the court applies to all children, parents can act on their child’s best behalf by setting aside conflict and taking time to outline a plan that only they could know best for their child’s future.

Not to be ignored are the preferences of the child, yet the child should never be put in a situation where they are forced to ‘decide’ which parent is better (de facto – who they “love more”), as this can lead to great feelings of inner conflict and irresolvable guilt within the child.  Also, beyond the parents, the environment, including the home, community, and network of friends and family should be viewed as a vital part of planning a child’s best future.  This becomes vitally important as a single parent faces the challenge of providing enough quality time for the child and needs the best possible support and assistance to do so.

Whether the custody decisions are made by the parents or the court, obtaining the input of professionals is essential.   Even an out of court agreement should be drafted by a competent and involved attorney.  This agreement should also then be witnessed (or filed) with the district office of the court.

The input of a professional will also allow parents to cover all bases (regarding a child’s life) and consider answers to questions they have not thought of.   These can include present and future financial plans for the child, insurance, inheritance/retirement benefits, assets/assigning as an heir, obtaining and retaining vital documents such as medical history, national ID/pass, special needs of the child/family, and the unique characteristics of the child and how to best support these.

What is important to your child’s development?

For children the most vital things start with the basics, safety and health.

This can be and is often measured by the court in terms of the type of home/living space provided to the child, the job/income of each parent, and the support network of people living with or near the home.

Less measurable, yet recognized as vitally important is a child’s experience of love and social development.  This quality of a child’s life may be ascertained by direct observation and interview of the child and each parent / home.

Other considerations include education and insurance, as the general standards of education will be a sounding board compared to the options available to the child with each parent/home.

It cannot be ignored also that a child’s overall sense of well being leads to a more solid character development.  Parents who can give a child confidence building experiences give them the best footing for becoming effective adults.

The question of “which parent will have primary custody” can be decided either by the parents or by the court.  What this means is that parents may negotiate an out-of-court agreement regarding the child’s living situation, schedule at home/visitation, educational plans, financial responsibility for the day to day and the greater needs of the child.  If the parents are able to make such an agreement without the courts decision, they retain greater control over both present and future decisions to be made on behalf of their child (ren).

One of the blessings of living in Thailand is the ability of parents to use the district office to legally record a parenting agreement without the use of the courts.

If the parents are unable to make an agreement about custody and caretaking of  a child, then the matter will be decided by a family court judge.  The judge will base decisions on several formulaic factors, often relying on ‘expert’ testimony from professionals evaluators/psychologists, etc.  The input of these professionals carries great weight as the court can lean upon their professionalism to mitigate the court’s stand alone responsibility.   These professionals often make powerful recommendations based on interviews that took only a few hours yet will effect the entire outcome of a child’s life.

In order to avoid a one-size-fits- all plan for a child’s future that was subject to a standard set of considerations that the court applies to all children, parents can act on their child’s best behalf by setting aside conflict and taking time to outline a plan that only they could know best for their child’s future.

Not to be ignored are the preferences of the child, yet the child should never be put in a situation where they are forced to ‘decide’ which parent is better (de facto – who they “love more”), as this can lead to great feelings of inner conflict and irresolvable guilt within the child.  Also, beyond the parents, the environment, including the home, community, and network of friends and family should be viewed as a vital part of planning a child’s best future.  This becomes vitally important as a single parent faces the challenge of providing enough quality time for the child and needs the best possible support and assistance to do so.

Whether the custody decisions are made by the parents or the court, obtaining the input of professionals is essential.   Even an out of court agreement should be drafted by a competent and involved attorney.  This agreement should also then be witnessed (or filed) with the district office of the court.

The input of a professional will also allow parents to cover all bases (regarding a child’s life) and consider answers to questions they have not thought of.   These can include present and future financial plans for the child, insurance, inheritance/retirement benefits, assets/assigning as an heir, obtaining and retaining vital documents such as medical history, national ID/pass, special needs of the child/family, and the unique characteristics of the child and how to best support these.

Child support payments, how much will you pay?

A recent article published by a English language Thai newspaper stated that approximate monthly payments due to a child and shared fifty/fifty by the parents would be: 1 child aged 1-10 years = 10,000 baht per month, 1 child aged 10-15 years = 15,000 baht per month, 1 child aged 15-20 years = 20,000 per month.

We are acquainted with a Thai man who is employed as a driver at a salary of 10,000 baht per month. He has three children aged 17, 15, and 6 years. Based on the above stated theory his fifty percent of the monthly child support payments would equal: 20,000 baht. As this amount is twice his salary there is clearly no way this scheme can work. The child support guidelines as stated in the recent newspaper article and above are erroneous.

The court will listen to a custodial parents request to award a specific amount of child support, however the court will base its award on the non-custodial parents income and ability to pay. Failure to pay court ordered child support can result in a garnishment of the non-custodial parent’s salary.

This concludes the final installment of this Thailand Family Law article series. In the next issue of Family Law in Thailand we begin an article series entitled “Everything you need to know about Thailand property laws, buying and managing all types of real estate, and how to avoid the common mistakes that can lead to disaster”.