We've all heard the horror stories: man marries Thai woman, man loses everything, woman ends up with lots, man ends up with nothing.
Okay, it's quite often the case that a man “voluntarily” gives his livelihood away under the spell of “love”, but given the prevalence of relationships gone bad in Thailand, it makes sense to protect yourself on the way in, so that on the way out you can still afford shelter and food.
Enter the prenup.
A prenuptial agreement, commonly known as a prenup, is a legal contract entered into by a couple before they get married. This agreement outlines the division of assets, debts, and financial responsibilities in the event of a divorce, separation, or death.
In Thailand, prenuptial agreements are governed by the Thai Civil and Commercial Code. Given the complexity of this legal framework, consulting with a lawyer familiar with Thai law is essential when drafting and filing such a contract.
Please note that I am not a lawyer, and none of the information in this article constitutes legal advice. This is just my understanding of the way prenuptial agreements work in Thailand.
If you need a Thai lawyer, message me and I'll be happy to refer you to one.
Prenups in Thailand
Prenuptial agreements hold significant cultural importance in Thailand, where marriage provides both financial and legal support to couples. This makes it especially critical for those with substantial assets to create a prenup.
Typically, these agreements include provisions that ensure each party receives a fair share of combined assets, with allocations potentially varying based on the marriage's duration.
Benefits of a Prenup
A prenuptial agreement provides a clear financial plan during marriage and in the event of a divorce, helping to prevent major disputes. It ensures a fair division of assets, which is particularly beneficial for couples with significant property and assets or those of different nationalities marrying in Thailand. Unlike postnuptial agreements, which hold less weight under Thai law, a prenup should be established at the time of marriage registration.
- Financial Clarity: It provides clear financial expectations and responsibilities, reducing conflicts over money during the marriage.
- Asset Protection: Protects individual assets acquired before the marriage and ensures they remain with the original owner in case of divorce.
- Debt Protection: Shields one party from the other’s debts, preventing them from being held responsible for liabilities they did not incur.
- Reduced Conflict: By pre-determining the division of assets and support, it minimizes disputes and legal battles during divorce proceedings.
- Family Protection: Protects the financial interests of children from previous relationships and other family members.
Division of Assets
Common Assets
Without a prenuptial agreement, all assets acquired during the marriage will be divided equally between both parties. This principle also applies to non-married couples who have lived together for an extended period.
Assets Acquired Before Marriage
Assets obtained prior to marriage registration typically belong to their original owner. Yet, reality can be more complex, particularly in the event of divorce. It is therefore wise to consider these assets when drafting a prenuptial agreement and ensure you are covered.
Scenarios Requiring a Prenup
Consider a prenup if you:
- Have more assets or income than your partner.
- Are remarrying and have children from a previous marriage.
- Your partner has significant debt.
- Own a business or part of a business.
Drafting the Prenup
Once your partner agrees to a prenup, both parties should employ separate lawyers to negotiate terms objectively. You might also consider a notarial service lawyer to verify signatures, confirm identities, administer oaths, certify documents, and witness the signing.
Legal Requirements for Prenups in Thailand
Creating a prenuptial agreement in Thailand involves meeting specific legal requirements:
- Written Agreement: The prenup must be in writing.
- Legal Representation: Each partner must have their own attorney.
- Witnesses: Two witnesses, at least 18 years old, must witness the signing during the marriage registration.
- Registration: The prenup must be registered at the same local office where the marriage is registered.
Ensuring the Prenup’s Validity
To ensure the validity of your prenuptial agreement under Thai law, it must:
- Be written and signed by both parties.
- Be signed on the day of marriage registration; otherwise, it will be void.
- Have the same witnesses for both the prenup and marriage registration.
- Be attached to the marriage certificate upon registration.
- Comply with laws emphasizing good morals and public conduct.
Prohibited Clauses in a Prenup
Certain clauses cannot be included in a prenup under Thai law, such as:
- Requiring one spouse’s entire salary to be given to the other.
- Governing the agreement by laws outside of Thailand.
- Specifying individual debts as solely one spouse's responsibility.
- Declaring assets acquired during separation as personal property.
Key Aspects of a Prenuptial Agreement
- Asset Division: It specifies how the couple’s assets and property will be divided if the marriage ends. This includes real estate, investments, personal property, and any other financial assets.
- Debt Allocation: The prenup outlines each party’s responsibility for debts acquired before and during the marriage.
- Spousal Support: It can define whether either party will receive spousal support (alimony) after a divorce and the terms of such support.
- Inheritance Rights: The agreement can clarify what happens to assets in the event of one spouse's death, protecting the inheritance rights of children from previous marriages or other relatives.
- Business Interests: For those who own a business or have a stake in a business, the prenup can protect business interests by ensuring the business remains with its original owner.
- Personal Property: It can specify which personal items belong to each spouse, such as jewelry, art, or family heirlooms.
- Other Provisions: The prenup can include various other provisions, such as handling of savings and retirement accounts, life insurance benefits, and educational funds for children.
Prenups and Divorce (Contested & Uncontested)
If your marriage ends in divorce, you have two options: an uncontested (administrative) divorce or a contested divorce.
An uncontested divorce is simpler and more cost-effective, as it relies on mutual agreement without the need for specific reasons. This process is quicker and less stressful for both parties.
On the other hand, a contested divorce requires court intervention. In this scenario, a prenuptial agreement can be invaluable in resolving property disputes and ownership disagreements, facilitating a smoother resolution. The same prenup can also support an uncontested divorce by minimizing conflict.
A prenuptial agreement allows couples to manage the division of marital property discreetly and privately. Once a settlement is reached, it is filed at the district office where the divorce is finalized.
Typically, with a prenup, divorces between Thai citizens and foreign spouses are easier to manage. If the marriage was registered in Thailand, couples often prefer the less contentious route of an uncontested divorce.
Note: Foreigners marrying in Thailand should seek legal counsel before filing for an uncontested divorce, as not all countries recognize this type of divorce. Consulting with an attorney ensures compliance with applicable laws.
Alimony in Thailand
Though Thai courts typically determine alimony in divorce settlements, the outcome can be unpredictable. It's wiser to err on the side of caution. Ensure you include provisions for alimony in your prenuptial agreement to avoid surprises later on.
Postnuptial Agreements
You might be reading this a little too late and wondering if there is a chance of a postnuptial agreement. Unfortunately, agreements made after marriage between a husband and wife are not legally recognised. However, under Thai law a prenuptial agreement made before marriage can be changed during the marriage under Thai law.
After the marriage, any changes or cancellations to a prenuptial agreement can only be done by a Thai court. The court will then inform the Marriage Registrar to update the Marriage Register accordingly.
Addressing Partner Reluctance
A partner might be reluctant to sign a prenuptial agreement for several reasons. They may perceive it as a lack of trust or belief in the longevity of the marriage, feeling that it undermines the emotional and idealistic aspects of the relationship. Some view prenups as unromantic, which can detract from the sentimentality of the marriage.
Concerns about fairness also play a role, as one partner might worry that the terms heavily favor the other. Financial disparity is another factor; a partner with fewer assets might feel disadvantaged or that their financial future is at risk. Additionally, social and family pressure can influence their decision, especially if their close circle views prenups negatively.
A lack of understanding about the purpose and benefits of a prenup can lead to resistance, as can the emotional sensitivity of discussing finances and the possibility of separation. All these factors contribute to a partner's reluctance to sign a prenuptial agreement.
If your partner is hesitant to sign a prenup, it’s important to approach the topic with care. While the idea of a prenuptial agreement might seem unromantic, it is essential to consider financial protection. Setting aside sentiment temporarily to focus on legal safeguards is vital for both parties' futures.
Finding Common Ground
To ease any discomfort about a prenup, consider including a sunset clause, which terminates the agreement upon a significant event, such as the birth of a child or a milestone anniversary. This approach can reassure your partner by showing a commitment to a long-term future while also protecting both parties financially.
Additionally, having open and honest conversations about the agreement can help. Emphasize that the prenup is a mutual safeguard rather than a sign of distrust. Both partners should have their own legal counsel to ensure fairness and understanding of the terms.
Furthermore, consider including terms that benefit both parties and address their individual concerns, which can make the agreement feel more balanced and equitable.
Highlighting the positive aspects, such as clear financial planning and the prevention of disputes, can also help in finding common ground. By approaching the topic with empathy and transparency, you can create an atmosphere of trust and cooperation.
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