The (limited) freedom of contract in a prenuptial agreement in Thailand
Prenuptial/premarital agreements in Thailand can cover matters relating to personal and common property between husband and wife. A prenuptial must be made in contemplation of marriage, must be in writing and signed by both parties and registered in the marriage registers together with the registration of the marriage. A prenuptial agreement can in its content not eliminate the statutory system of property between husband and wife but it can modify the management over certain common property. A prenuptial agreement in Thailand between a couple planning to marry is commonly used to lists personal assets of each spouse and to establish rights and responsibilities regarding management of the properties during the marriage. It can include the intention how common assets are to be divided upon termination of the marriage, but the prenuptial should not cover subjects like child and spousal support or the making of a will.
Advantage of a Thai prenuptial agreement
Everything that is owned before the marriage remains personal property during the marriage under Thai matrimonial laws. The first benefit of a prenuptial agreement in Thailand lies in simple proof in case of a possible divorce and could prevent disputes over property. By listing each parties assets in a prenuptial agreement the couple could prevent unnecessary arguments over ownership of certain items in case the marriage is later dissolved. In a possible future divorce the parties do not have to prove what they brought in the marriage as this is listed in the prenuptial agreement. In this case it is possible to simply ignore a claim from the other spouse on personal property when the marriage ends in a divorce.
The second benefit of a pre-marital or prenuptial agreement lies in the right to manage certain marital properties. A prenuptial agreement may grant the sole right of management over jointly owned assets as listed in section 1476 of the Civil and Commercial Code to one of the spouses. As section 1476 among others refers to real estate property it is important to realize that real estate in Thailand often will be held as a personal property of the Thai spouse. The aspect of management of marital assets in a prenuptial does in any case not apply to land acquired as a personal property of the Thai spouse (read: division of the marital home).
The third benefit of a prenuptial agreement is that it can state possible division of assets in case the marriage is later dissolved. In a possible divorce in Thailand all properties must be taken out of the marriage and common property divided equally. For personal property this should not be a problem when it is listed in a prenuptial agreement. If there is a dispute whether or not an asset is a marital property or a personal property the division could become more complicated and the parties have to find agreement between them or a judge will decide for them. It is recommended during the course of the marriage to keep a record of personal and marital assets signed by both spouses that can be used as evidence. The reason for this is section 1474 Civil and Commercial Code, as in case of doubt if an asset is personal or common property it is assumed to be a community property between husband and wife, unless there is evidence that proves the contrary. All property acquired or gained by either spouse during the course of marriage is presumed to be marital/community property. The exception to this rule can be found in the last sentence of section 1474.
To determine the valuation of property which consists out of personal and marital property is complex. The court has the discretion to value it based on individual circumstances and of course according to the laws of Thailand.
If the couple can't agree on the division of property and the terms the divorce could become contested, meaning it has to be referred to a court instead of a simple divorce on mutual consent at the amphur in Thailand which requires only agreement between the parties read more...
Is a prenuptial enforceable in Thailand?
The content of the prenuptial cannot be against the law or good morals. Any terms in the prenuptial agreement against the statutory legal system of property between husband and wife will quickly be set aside by a court in Thailand as against public policy or good morals and therefore null and void (section 1465 Thailand Civil Code). The prenuptial agreement can include possible division of properties, however as the concept of a prenuptial agreement is rather new the legal literature on prenuptial agreements is still underdeveloped. A prenuptial agreement in Thailand cannot exclude the general statutory system of personal and common property between husband and wife. It is slightly unpredictable how the courts deal with arrangements on the division of properties made in a prenuptial agreement in a contested divorce.
NOTE: Division of real estate in a divorce: irrespective if a foreign spouse has signed away his rights to land or property purchased by his Thai spouse during marriage, in a divorce procedure a Thai court can ignore the signed 'letter of confirmation' by which the foreign spouse has signed away his rights if there is a conflict between the regulation by the Ministry of Interior and the system of 'property between husband and wife' in the Civil and Commercial Code. As the regulation by the Ministry of Interior is lower legislation the court must in principle apply the system of the Civil and Commercial Code and must ignore the letter of confirmation in its decision how to deal with properties between husband and wife (i.e. if the property is paid for by the foreign husband it will not be dealt with as a personal property of the Thai spouse).