Author: siamlegalthailand

WHICH LAW SHOULD I FOLLOW IN MY PRENUP?

Depending on the law, you may be able to specify how the property division is carried out. This may be Thai law or the law of the spouse’s home country (or a combination of the two). Under Thai law, you may be able to specify the properties involved and categorize them into community property and separate property. You may also specify how finances will be managed during the course of marriage. However, there are issues concerning conflicts of law and the applicability of those laws may vary depending on the policy of each country.

Understand the policy of your country
US Citizens
Prenuptial agreements are valid in all 50 states. In fact, since 1983, at least 26 states have enacted a version of the Uniform Premarital Agreement Act, which encourages enforcement of prenups. Case law is sufficiently developed that a well-drafted prenuptial agreement, properly prepared by counsel for both parties, can withstand the toughest scrutiny.

Without a prenuptial agreement you’re letting your financial future be determined by a third party.
If you live in one of the nation’s nine community property states — Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington or Wisconsin — the law says property accumulated during the marriage will be divided equally.
In all other “equitable distribution states,” assets are divvied according to what the court deems fair. The judge would take into consideration things such as the length of the marriage, whether there are children, and the couple’s age, health, job skills and other factors. Alaska is a special case — it’s an equitable distribution state, but it has a law that allows people to voluntarily enter into a community property agreement for certain assets.

UK Citizens:
Prenuptial Agreements are just starting to take off right now in the UK. The law here now allows judges to take a prenuptial agreement into account in dividing the spoils of a defunct marriage. And, in a little-noticed trend, the courts are becoming more and more willing to give substantial weight to the terms a couple agreed before they said “I do.”

The courts appear to be evolving from their previous view that prenuptial agreements were of little significance. In fact, particular attention has been paid to them in recent case law and in several cases the family courts have saved the wealthier party substantial sums of money purely on the strength of the couple’s wishes as stated in their prenuptial agreement.

Here are some of the criteria that English courts now examine when reviewing Prenuptial Agreements:

Did the party with most to lose understand the agreement?
Did he/she have independent legal advice?
Was he/she under pressure to sign?
Was there full financial disclosure?
Would an injustice be done if the agreement were upheld?

The court will also consider whether there have been any significant changes since the agreement was signed such as the length of the marriage, the birth of any children and whether there have been any significant changes in the parties’ financial circumstances or health

Canadian Citizens
Prenuptial agreements are enforceable in Canada. Courts in Ontario and other common law provinces of Canada previously considered marriage contracts to be contrary to public policy and unenforceable, but the 1978 Family Law Reform Act (now continued in the Thai Family Law Act) specifically authorized marriage contracts. The Thai Family Law Act provides that a court may set aside a provision for support or a waiver of the right to support in a marriage contract and may determine and order support even though the contract contains an express provision excluding the application of this section:

a. if the provision for support or the waiver of the right to support results in unconscionable circumstances;
b. if the provision for support is in favor of, or the waiver is by or on behalf of, a dependent who qualifies for allowance for support out of public money; or
c. if there is default in the payment of support under the contract or agreement at the time the application is made.

As a result, a provision in the marriage contract either limiting or precluding a claim for future support is very much subject to the discretion of the court at the time an application for support is made.
Even as to assets, prenuptial agreements s are not insurmountable. A Canadian court might modify or even ignore an agreements is some circumstances, such as if an unforeseen financially disabling or devastating event has occurred. Some provinces expressly provide that their courts may set aside a prenuptial agreement if it is “unfair”. Thus, Section 51 of British Columbia’s Family Relations Act states that even if there is a valid marriage contract, the court may re-divide the assets on the basis of fairness

EU Citizens:
Prenuptial agreements are generally enforceable in various parts of Europe like Austria, France, Greece, Luxemburg, Portugal, Spain, Sweden and Switzerland. These countries are part of the Hague Convention on the Law Applicable to Matrimonial Property Regimes, which specifically authorizes prenuptial agreements. In Germany, the Federal Court of Justice recently ruled that notarized prenuptial agreements that seriously disadvantage one party in a marriage could be deemed invalid. In The Netherlands, the parties may enter into a  prenuptial agreement at the time of concluding their marriage (or during the marriage itself but in the latter case, the approval of the courts is required.

Australian Citizens
Pre-nuptial agreements, known as ‘binding financial agreements’, became enforceable in Australia in 2000 with the enactment of the Thai Family Law Amendment Act 2000.
Part VIIIA of the Family Law Act 1986 requires that the parties secure independent legal advice and permits courts to refuse to enforce agreements on the grounds of fraud, duress, mistake, undue influence, as well as if it is impracticable for all or part of the agreement to be carried out, or if there has been a material change in the care of a child leading to hardship.

Checklist for a Binding Financial Agreement (Section 90G)
1. Agreement signed by both parties
2. The agreement contains a statement that each party obtained independent advice from a legal practitioner as to the following matters:
the effect of the agreement on the rights of that party
whether it was an advantage or disadvantage of that party to make the agreement
whether or not it was prudent for that party to make the agreement
whether the provisions of the agreement were fair and reasonable in the circumstances
3. An annexure (attachment) to the agreement contains a certificate signed by the legal practitioner stating that such advice on the above matters was provided
4. the agreement has not been terminated or set aside by a court of law
5. Upon signing, the original agreement is given to one of the parties and a copy is given to the other.

If these requirements are fulfilled, the court may make any such necessary orders for the enforcement of the financial agreement.

WHAT HAPPENS IF I DO NOT HAVE ONE?

You may be perfectly convinced that there is no possible harm that could come to you if you don’t prepare a Thai prenup. The truth is, there is – The Thai Courts.
If the couple does not enter into the pre-nuptial agreement, the management of their property will be governed by general rules of Thai Family Law.

Read about how your property will be managed

Here’s what the Thai Family Law states about property management:
1.Either spouse has the right to manage his or her private property.

2.Both spouses must manage the common property jointly or with the consent of the other spouse in any of the following cases:

(1) Selling , exchanging, selling with right of the redemption, letting and selling on the term of hire-purchase, mortgaging, releasing mortagage or transferring the right of mortagage on immovable property or movable property which is mortgagable;
(2) Creating or extinguishing the whole or a part of a servitude, a right of habitation, a right of superficies, a usufruct, or a charge on immovable property;
(3) Letting immovable property for more than three years;
(4) Making a loan of money;
(5) Making a gift, except with due regard to the family’s station in life for charitable or social purpose, or in compliance with a moral duty;
(6) Making a compromise;
(7) Submitting a dispute to arbitration;
(8) Putting up property as guarantee or security to the official or court.

The management of the common property other than those provided in paragraph one, can be done by either spouse without the consent of the other.
If either spouse has committed a juristic act mentioned above without the consent of the other spouse, such juristic act shall be valid only when it has been confirmed by the other spouse.
If the other spouse does not give consent to the act concerned or does not confirm it, he or she, as the case may be, may apply to the court to revoke such juristic act. However if it appears that a third party acted in good faith at the time of concluding such juristic act, such act cannot be revoked.
The right to revoke is limited to the period of one year from the time when the spouse is cognizant of the cause of revocation or ten years since the juristic act was done.
The power to manage common property jointly between husband and wife does not mean that the couple must ask for consent from each other for every act. Either spouse has power to manage household affairs or to provide necessaries for the family.

Debts incurred by either spouse during marriage are common debts which are binding on both spouses equally, as follows;

(1) debts incurred for the necessary management of household affairs, maintenance, and medical expenses of the household and proper education of the children.
(2) debts incurred in connection with the common property.
(3) debts incurred in connection with a business carried on by the spouse in common.
(4) debts incurred by either spouse only for his or her own benefit but confirmed by the other.

Upon termination of the marriage, the common property shall be returned to each spouse equally. Both spouse are liable for common debts to the same proportion.(36)

WHAT ARE PRENUPTIAL AGREEMENTS?

A prenuptial marriage agreement is a signed and notarized contract that spells out how a couple will handle the financial aspects of their marriage. Although not very romantic, having this honest financial discussion prior to a wedding ceremony can be a very positive experience.

It’s hard to talk about marriage as if it were “business,” but when it comes to creating a prenuptial agreement, that’s exactly the approach you should take. A prenuptial agreement isn’t a well-planned “exit strategy” or evidence of a lack of faith in the relationship. It is simply protection against an unlikely and unforeseen “what if” circumstance … an important “insurance policy” on the legal issues of the marriage contract
Prenuptial agreements are allowed pursuant to Thailand law if they meet certain requirements. It is advisable to have a qualified law office assist you with the preparation of a Thai prenuptial agreement and the translation and legalization of such an agreement pursuant to Thai law. Thai Prenuptial agreements, when prepared correctly, are generally considered valid legal agreements in jurisdictions outside of Thailand. Although litigation can be an unpredictable process and the laws of different countries may vary, it is always safer for an individual with significant assets, or even for an individual who is merely careful about his/her financial future, to have a prenuptial agreement.

Thai Prenuptial Pointers

The couple who intends to get married in Thailand can enter into a Thai prenuptial agreement concerning the management of their property at the time of registration of their marriage. There are three limitations to the Thai prenup.

(1) the agreement must not be contrary to the public order or immoral;

(2) the agreement must not provide that such property is to be governed by foreign law.
(3) the agreement must be in writing, signed by both spouses and by at least two witnesses and registered at the time or registration of the marriage.

After marriage, the Thai prenup cannot be modified or rescinded except by authorization of the court.

Top 10 Reasons a Prenuptial Agreement May be Invalid

1. 1. NO WRITTEN AGREEMENT. Premarital agreements must be in writing to be enforceable.

 

1. 2. NOT PROPERLY EXECUTED. Both parties must sign a premarital agreement before the wedding in order for the agreement to be considered valid.

 

1. 3. YOU WERE PRESSURED. A premarital agreement may not be valid if one of the spouses was pressured by the other (or by his or her lawyer or family) to sign the agreement.

 

1. 4. YOU DIDN’T READ IT. If your spouse-to-be puts a bunch of papers in front of you, including a premarital agreement, and asks you to sign them quickly, the premarital agreement may not be enforceable if you sign it without reading it.

 

1. 5. NO TIME FOR CONSIDERATION. A prospective spouse entering into a premarital agreement must be given time to review it and think it over before signing it. If the groom hands the contract and a pen to the bride just before she says, “I do,” the agreement is probably invalid.

 

1. 6.INVALID PROVISIONS. Although a premarital agreement can cover just about any financial aspect of the parties’ relationship, it cannot in any way modify the child support obligations that either spouse would have if the marriage should end in divorce. Any other provisions of the agreement that violate the law would also be invalid. It is possible, however, that the court would strike the illegal clauses and enforce the remainder of the agreement.

 

1. 7. FALSE INFORMATION. A premarital agreement is valid only if it is entered into after full disclosure by both parties — as to their income, assets, and liabilities. If one prospective spouse provides the other with information that is not true, the agreement is invalid.

 

1. 8. INCOMPLETE INFORMATION. Failing to provide pertinent information is as bad as providing false information, and it renders a premarital agreement unenforceable.

 

1. 9. NO INDEPENDENT COUNSEL. Because their separate interests are at stake, both parties to a premarital contract should (and in some states must) be represented by their own attorneys, or the agreement will not be enforced.

 

1. 1. 10.

   UNCONSCIONABILITY. It’s true that you can agree to give up your right to inherit from your spouse, which you would otherwise be entitled to do upon your spouse’s death, even if he or she left you out of a will. You can sign away your right to spousal support if you should end up in divorce court, even if your spouse makes ten times as much money as you do. You can even agree that your spouse gets all of the property and you get all of the bills, if that is what you want to do. But if the agreement is so grossly unfair that one party would face severe financial hardship while the other prospered, the court is unlikely to enforce it. “Unconscionable” contracts are generally found invalid, and premarital agreements are no exception.

Why Do I Need A Prenup?

Here is a rundown of the reasons why you should get a prenuptial agreement:

1. Having a prenuptial marriage agreement does not mean that a couple is anticipating divorce.

 

1. Financial matters need to be faced.

 

1. Prenuptial agreements can preserve family ties and inheritance.

 

1. If your future spouse won’t sign a prenuptial marriage agreement, it may be best to discover this before the wedding.

 

1. The financial well-being of children from a previous marriage can be protected.

 

1. Personal and business assets accumulated before your marriage are protected.

 

1. A prenup puts financial expectations out on the table before your wedding.

 

1. A prenuptial marriage agreement spells out which assets a spouse may want to give to children or other family members in the event of death.

 

1. In the event of a divorce, a prenuptial agreement

eliminates battles over assets and finances.

DO I NEED A LAWYER?

Yes, you do need a lawyer when making a prenuptial agreement.

Others may attempt to come-up with a Thai prenup using self-help guidebooks and other resources. We say, if you want to end up with a clear and binding premarital agreement, you should get help from a good lawyer. Here’s the reason why: Learn how to choose a qualified lawyer
The laws governing marriage contracts vary tremendously from one country to another, and the Thai marriage laws could be way too different from that of your own country (which you are more familiar with). You can certainly do some of your own research to find out general information about Thai prenuptial agreements. But, if you don’t want to invest too much of your time learning the ins and outs of the Thai prenups, a lawyer who knows the intricacies of these laws will be an important resource. The lawyer can help you put together a prenup that meets state requirements and says what you want it to say.

Choose a Qualified Lawyer A prenuptial agreement is an important legal document which can have a significant effect on your future. Although many law firms in Thailand deal with prenuptial agreements, only a handful of these firms are qualified enough to perform it. When selecting a Thai law firm, you should select one that has an international divorce practice, and understands issues on international prenuptial agreements and marital rights in Thailand and the other countries involved.

Law Firm
As Thailand’s LARGEST Legal Service Network, Law Firm ensures its clients the highest level of legal service available in the Kingdom. Our professional team of international attorneys and Thai lawyers will guide you step-by-step in drafting your Thai prenuptial agreement. Our competence in Thailand law combined with our international experience gives an assurance that your Thai prenup meets the requirements of the Thai law and the minimum requirements of the law in your respective country.

Thailand Marriage Registration

A marriage can take place on declaration made by both the parties intending to marry by giving consent to take each other as husband and wife publicly before the registrar in order to have it recorded by the Registrar. Giving consent to the marriage may be made
1) By affixing signature of the person giving consent in the Register at the time of registration of the marriage;
2) By a consent document stating the names of the parties to the marriage and signed by the person giving consent;
3) By verbal declaration before at least two witnesses in case of necessity. The consent having been given cannot be revoked.

An application for registration for marriage can be filed at any District Office or Minor District Office nationwide regardless of the birthplace of the couple.
If the Thai marriage registration is filed at the District Office located in female’s birthplace (where the name is registered on the House Registration Certificate), the title used with the forename and the last name of the female will be changed by the District Officer. The female is required to file for a new Identification Card within 60 days. If the marriage is registered elsewhere, the female is required to contact the local District Office to change her name and last name, as well as filing for a new Identification Card.

If both parties are unable to file for marriage at any District Office or Minor District Office, the couple can submit a request to the Registrar to register their marriage at any location under the supervision of that District Office. The parties filing for marriage are required to provide transportation for the Registrar. A service fee of 400 Baht is required by the ministry

Marriage shall be affected only on registration being made. After registration is completed, a Thai Marriage Registration Certificate to be obtained as evidence.

Procedures for Thailand marriage registration by a foreigner

The foreigners who are wishing to marry shall appear in person with their respective passports and arrival card at their Embassy in Thailand to complete declarations attesting that he/ she is single and free to marry in accordance with Thai Law and the registration shall be effected by a Thai Diplomatic or Consular Officer.

l. Take the completed declaration to a reputable translation office to have the contents of the declaration translated into Thai.

The documents together with translation and copies of passports have to be taken to the Legalization Division of Consular Affairs Department, where the Consular Official’s signature will be authenticated. This normally takes 2 days. The documents and translation are then ready for submission to the District Registrar who will register the marriage and issue the marriage certificate in Thai in accordance with and following the procedure led down in Thai Law.

SPECIAL NOTE:
You should allow four working days in Bangkok prior to registering your marriage as you are required to have been resident in Thailand for at least three days before you marry and you must allow time for the paperwork to be processed in Bangkok. This also allows you to visit some of the wonderful attractions in Bangkok.
If you have previously been married, your divorce certificate. The certificate should be translated into Thai. Since the certificate must be legalised by the Embassy, we prefer that the translation is made by the Embassy or by a translation office recommended by the Embassy.