Prenuptial Agreements in Thailand: The Why’s and How’s

A Prenuptial Agreement, commonly known as a “prenup,” is a formal document crafted by couples before they marry. This agreement outlines the assets, debts, and disposition of property and income in the event of a divorce or separation. While discussing the possibility of divorce may feel uncomfortable, and contemplating it before marriage may seem like planning for failure to some, having a prenup is a crucial safeguard. Soon-to-be-wed couples should think of a prenup as just another facet of their financial planning for the future, and couples who plan out their lives in real terms usually have much stronger relationships.

Importance of a Prenuptial Agreement

A Prenuptial Agreement holds great importance as it serves as a crucial financial strategy, offering a protective buffer for individuals that prevents more difficulty, stress, and ill will later on. Particularly crucial for couples with substantial property and assets, a prenup ensures that hard-earned investments and valuable assets do not end up being unfairly distributed in the event of a divorce, and accelerates the separation process so each affected party can move on with their lives.

Key aspects of a prenup include:

• Protection of personal property
• Protection of business assets and family property
• Protection of both parties’ financial well-being

In the unfortunate event of a divorce, a prenup also shields from debts incurred by a singular spouse without the contribution of the other and establishes clear financial responsibilities for any children involved.

Creating a prenup not only reduces the risk of legal complications but also minimizes litigation costs. It serves as a guiding document during divorce proceedings, aiding in determining a fair allocation of properties between the parties involved. Many couples opt for a prenup before tying the knot, recognizing its practical importance in safeguarding their financial interests, ensuring a smoother legal process if circumstances change, and guaranteeing that any children will be provided for without difficulty.

Though some people opt for a Postnuptial Agreement after marriage, it is not advised as a prenup is much stronger under Thai Law.

Obtaining a Prenup in Thailand

Drafting the Agreement

In Thailand, the drafting of Prenuptial Agreements is governed by the Thai Civil and Commercial Code. Consulting with a lawyer, particularly one knowledgeable about Thai legal codes, is essential when drafting and submitting a prenup.

Simply calling a document a “prenup” is no guarantee that it will be upheld by a Thai court, so to ensure the document is strong and will perform its function properly, any prenup should be drafted by a certified and experienced attorney.

Prenuptial Agreement Requirements

According to Thai law, specific prerequisites must be fulfilled when establishing a prenup, including:

• The agreement must be documented in writing.
• Each party should be legally represented by their respective attorney.
• Both parties must sign the prenup in the presence of two witnesses, each at least 18 years old.
• The prenuptial agreement must be filed with the same local authority where the marriage registration takes place.

Validity of the Prenuptial Agreement

After creating the Prenuptial Agreement, it is crucial to ensure full agreement with its conditions, considering Thailand's specific legal limitations on prenups, which include:

• The prenup must be made prior to the marriage.
• The prenup should be in written form and signed by both parties.
• It must be signed on the same day as the marriage registration or the prenup will be considered null and void under Thai law.
• Both witnesses of the prenup signing must also witness the marriage registration.
• Both parties must comprehend the provisions of the prenup, which should be drafted in both Thai and English if one of the spouses is a foreign citizen.
• Legislation in Thailand dictates that the prenup must align with laws emphasizing good morals and public conduct, ensuring compliance to prevent violations of laws and public morals.

It should also be noted that any prenup that is written in the Thai language cannot be changed after the marriage of the couple. Unless the court authorizes a change, the Thai prenup terms must be honored. 

Prohibited Information in Prenuptial Agreements

Given the legislation requiring Prenuptial Agreements to align with laws emphasizing good morals and public conduct, one cannot selectively design the agreement to cater to personal desires. The addition of certain elements would render the prenup void, including:

• A clause stating the allocation of the husband’s entire salary to the wife.
• Any implication that the agreement is subject to statutes outside of Thailand.
• Specification of an individual's debts, such as portraying a joint debt as solely that of one of the spouses, or designating a spouse's obligation as a debt of the other.
• Inclusion of a clause indicating that assets obtained during separation belong to the individual acquiring them. 

Verifying the Legality of the Prenuptial Agreement

After reviewing the necessary requirements, when both parties are prepared to draft the Prenuptial Agreement, a Notarial Service Attorney can be hired to perform the following tasks:

• Validate the authenticity of the document's signatures
• Verify the identity of each party involved in the contract
• Administer any necessary affirmations or oaths
• Ensure that specific documents have been properly attested and certified
• Witness the signing of the agreement

Due to existing international laws, it should be noted that couples using notarial services in Thailand may be required to obtain additional authentication of notarized documents from the country’s Ministry of Foreign Affairs.

International Marriages and Prenuptial Agreements

When marrying a Thai citizen as a foreign national, it is highly advised to seek legal assistance. This is essential because certain aspects that may be required in the prenup might not be relevant in your home country. These elements include: 

• Common Assets - Without a prenup, assets acquired during the marriage will be equally divided. This applies to not only married couples but also to non-married couples who have lived together for an extended period. It is important to contact a lawyer when creating an agreement to handle asset division in the event of a split.
• Assets Acquired Before Marriage - Though it may seem logical that assets acquired before marriage should belong to their rightful owner, the divorce process may complicate this notion. It is important to consider these items when drafting your prenup.
• Alimony - While the court usually decides alimony in divorce settlements, having a contingency plan is crucial, as outcomes can be unpredictable. Having alimony provisions in the prenup ensures a fairer and more transparent outcome.

Use of a Prenuptial Agreement in the Case of a Divorce

In the event of a divorce, couples in Thailand have the option to choose between an uncontested/administrative divorce or a contested divorce. Opting for an uncontested divorce is a quicker and less costly process, as neither party needs to provide a specific reason for ending the marriage and their mutual agreement is enough. 

On the other hand, contested divorces are handled in court and involve legal proceedings. These divorces may arise when disputes, particularly regarding property or ownership disagreements, cannot be resolved amicably between the parties. A prenup plays a crucial role in such cases, providing a framework for addressing property disputes and contributing to a more structured legal process. However, regardless of whether the divorce is ultimately contested or uncontested, a prenup will make the whole process faster, smoother, and less expensive. 

Additionally, Prenups allow couples the opportunity to manage the division of marital property with discretion and privacy. Upon reaching an agreement, the settlement is formally filed at the district office where the divorce is granted. This extra layer of protection offers couples a more personalized and efficient approach to managing the complexities of asset distribution during a divorce without having their personal lives laid bare before the public.    

It should be noted, though, that in the case of a foreign national divorcing a Thai citizen, it is crucial that they consult with an experienced family law attorney before filing for divorce, even an uncontested one. This is because not all countries will recognize Thai uncontested divorces in certain cases. Therefore, seeking the expertise of an attorney becomes essential to ensure that the divorce proceedings have the desired outcome and do not add further complications later on.