Contested divorce is the separation process initiated by one of the spouses to dissolve the marriage based on one of the grounds listed by the Thai Civil and Commercial Code. This proceeding takes place as soon as the spouses disagree on whether to divorce or the effects of disunion. In this case, it is necessary to sue the other spouse in separation proceedings in Thai courts.
Article 1516 of the Thai Civil and Commercial Code lists in an exhaustive manner the reasons why a spouse can bring an action for divorce in Thai courts:
|➤ In case of adultery|
|➤ One of the spouses is guilty of a fault which inflicts shame, an insult or a serious injury to his partner and cohabitation is no longer possible|
|➤ One of the spouses has caused serious injury or torture to the body or mind of the other, or has seriously insulted the other spouse or his ancestors|
|➤ One of the spouses has been away from home for over a year|
|➤ One of the spouses has been declared missing or has left his home or residence for more than three years without knowing whether he is alive or dead|
|➤ One of the spouses has not adequately provided for the maintenance and subsistence of the other, or has committed acts seriously prejudicial to the relationship between spouses to the point that the other has experienced undue hardship|
|➤ One of the spouses has had dementia for more than three years without interruption and this dementia is difficult to cure, so continuation of the marriage cannot be considered|
|➤ One of the spouses has violated the code of conduct|
|➤ One of the spouses is suffering from a contagious and dangerous disease, incurable and likely to cause harm to the other, the latter can file a request for divorce|
|➤ One of the spouses is physically disadvantaged to the point of being permanently unable to cohabit as husband and wife, the other can file for divorce|
The right to bring a divorce action ends if the spouse who is entitled to it has committed an act showing his forgiveness for the act committed by the other which gave rise to the right to bring the divorce action. Forgiveness thus ends the separation proceedings. This hypothesis is envisaged in article 1518 of the Thai Civil and Commercial Code.
In the event of separation by mutual consent, the spouses must enter into a written agreement to distribute the exercise of parental authority over each of the children between the parents. If the spouses cannot reach an agreement, the judge will decide the issue and issue an order.
In the event of separation by judgment of the Court, the Court hearing the divorce case also orders that parental authority over each of the children belong to one of the parties. If, in this lawsuit, it is considered appropriate to deprive this spouse of parental authority, the Court can make an order depriving this spouse of this authority and designating a third person as guardian, taking into consideration the happiness and the interests of the child.
In the event of a divorce pronounced by judgment of the Court for adultery, the spouse has the right to compensation from the one who committed the adultery. And the victim spouse even has the right to seek compensation from the person who has had relations with his spouse unless he has consented to it.
If the disunion is obtained by mutual agreement, the procedure is quick. If the spouses do not agree, the divorce must be pronounced by the court. The proceedings in Thai courts can take anywhere from six months to a year. The deadline is extended if the decision is contested before the court of appeal.
The price of separation depends on the procedure chosen. Indeed, a simple mutual agreement will be less expensive than the challenge procedure in court. The costs of the proceedings are high since the plaintiff must deposit 2% of the value of his claim as security. Depending on the number of goods you own, the amount of the deposit can quickly be high.
The prenuptial agreement, also known as a marriage contract, is applicable in divorce proceedings if it has been entered into in Thailand in accordance with Thai law and registered with the relevant department. The prenuptial agreement concluded in a foreign country is not applicable to separation proceedings in Thailand. This is the contract prior to marriage, by which the future spouses, with the help of their lawyers, consider all the consequences of the marriage but also the financial and food consequences in the event of the dissolution of their union.
Article 1466 of the Thai Civil and Commercial Code provides that the prenuptial agreement is valid and applicable in divorce proceedings if it meets the following conditions:
|➤ It must be in writing on the same date as the marriage registration|
|➤ It must be a written agreement signed by both parties|
|➤ Two witnesses are required|
|➤ The agreement must be attached to the marriage certificate when the marriage is registered|
Any clause of the prenuptial agreement contrary to public order or morality, or providing that the relations between them with regard to these goods must be governed by a foreign law is void.
Legally, the property will be divided equally between the spouses. They are subject to the regime of the legal community. However, the distribution will be made in accordance with the prenuptial agreement, subject to mandatory legal rules. Indeed, Thai law differentiates between two types of goods, “Sin Suan Tua” and “Sin Somros”.
Sin Suan Tua, also called own property, includes the following:
|➤ Property belonging to either spouse before marriage|
|➤ Personal use goods, clothing or ornamental objects suitable for life, or the tools necessary for the exercise of the profession of one of the spouses|
|➤ Property acquired by one or the other of the spouses during the marriage by will or by gift|
In this case, each spouse is the manager of his “Sin Suan Tua” and retains ownership of his property after marriage.
The “Sin Somros”, also called the commons, consists of the following goods:
|➤ Property acquired during the marriage|
|➤ Property acquired by one or the other of the spouses during the marriage by means of a will of gift made in writing, if this will or this document of gift is declared to be "Sin Somros"|
|➤ Results of "Sin Suan Tua"|
Thailand falls under the community legal regime, which means that any property acquired during marriage is considered shared or communal property, and any property acquired before marriage is not. This law is however subject to some interpretation. After separation, the property of the husband and wife is subject to liquidation. The property owned on the date of registration of the separation or on the date of filing of the divorce in court is subject to liquidation. Common goods “sin somros” are divided equally between men and women (unless otherwise agreed).
Not being a signatory to the Hague Convention on the Recognition of Foreign Judgments, Thailand does not recognize foreign judgments in disunion matters. It is necessary to obtain a judgment pronounced by the Thai courts for the separation to be valid and enforceable in Thailand.