What is a marriage contract?

A marriage contract in Thailand is an agreement between two people before they get married. A marriage contract in Thailand usually lists all the assets and debts that each person owns. In addition, it specifies what property rights each spouse will have after the marriage. A marriage contract can only take this form in Thailand and must be related to the property system between husband and wife or the way property is managed during the marriage. A marriage contract cannot remove the legal system of property between spouses, but it can change the management of certain joint property.

Moreover, according to article 1465 of the Civil Code, when the spouses have not, prior to their marriage, concluded a specific agreement concerning their property, the relations between them with regard to their property are governed by the law. Whereas, if the spouses have previously entered into a contract, the relationship between them with respect to their property shall follow the terms and conditions defined by the agreement.

Why make a marriage contract?

The prenuptial agreement in Thailand by listing the assets of each party could avoid property disputes in case of divorce. The parties will not have to prove what they have brought into the marriage, because it is stated in the deed. Upon divorce in Thailand, all property must be removed from the marriage and the joint property must be divided equally. According to article 1474 of the Civil and Commercial Code, if there is any doubt whether a property is personal or common property, it is assumed to be common property between husband and wife, unless proven otherwise. Therefore, it must be proven that the property is personal. If the proof of personal property is contained in an agreement, the division will be much simpler and fairer. Indeed, without an agreement, the parties will have to agree on the owner of the property, and if they cannot agree, the judge will have to decide.

The second advantage of a marriage contract is the right to manage certain marital property. The marriage contract can give one of the spouses the exclusive right to manage the common property.

Prenuptial agreement thailand

How to draw up a marriage contract?

Under the Thai Civil and Commercial Code, there are several requirements for a marriage contract in Thailand to be valid:

➤ The contract must be in writing and registered in the local district where the parties decide to register their marriage
➤ The parties must sign the Thai prenuptial agreement in the presence of two witnesses before the marriage is registered
➤ Both parties understand the contents of the contract and sign it before the marriage
➤ The clauses included in the contract are not contrary to good morals or the law

If the couple fails to comply with any of the requirements, the agreement is void and not enforceable in Thailand. Foreign courts applying Thai law to the marriage contract will also find that the agreement is void and refuse to enforce it.

What should a marriage contract include?

Each agreement is drafted precisely according to individual circumstances and cannot be the same for everyone. The parties should prepare information regarding their personal assets, sources of income, but the drafting of the contract will then depend on each couple.

Thailand has restrictions on what can be included in a marriage contract. First of all, as seen above, according to article 1465, the content of the prenuptial agreement cannot be contrary to the law or to good morals. Any clauses in a marriage contract that violate the legal system of property between the spouses will be considered null and void by a Thai court. In addition, according to Section 1598 of the Civil Code, if a couple attempts to waive the maintenance rights of one spouse, the provision or even the entirety of a marriage contract may be unenforceable. A clause allowing for the application of foreign law regarding property is void. Finally, the prenuptial agreement must not contain matters other than the division of joint property such as the establishment of alimony, future custody of children or the making of a will.

In addition, the contract must contain certain elements:

➤ The assets of both parties involved in the marriage and the management of Article 1476 of the Civil and Commercial Code
➤ The wishes of the couple on how to divide the matrimonial property in case of dissolution of the marriage upon death or divorce
Marriage contract in thailand

How to register a marriage contract in Thailand?

The marriage contract must be registered before the marriage, the signatures of two witnesses are required. The documents that the spouses must gather to register the contract are the following:

➤ The Thai ID of the parties
➤ The identity of the two personal witnesses
➤ A list of assets that each spouse reserves as their individual property (e.g. bank details, property titles, mutual funds, a spouse's share in a private company...)

The registration process can be done in two ways at the time of the actual registration of the marriage. The couple can inform the Registrar of the terms and conditions relating to the property at the time they register the marriage. Or the couple may decide to prepare a marriage contract in advance signed by the parties and two witnesses and give the agreement to the Registrar at the time of the marriage registration. The Registrar will record that the spouses have a marriage contract in the marriage registration certificate.

Can a marriage contract be changed?

According to Article 1467 of the Civil Code, once you have completed the prenuptial agreement, it will be effective for both parties forever. The only way to modify the contract is to obtain the consent of the court, but this is particularly difficult.  However, if the Court agrees to the amendment and issues a final order, the Court will notify the marriage registry of the matter so that it can be entered in the marriage registry.

Also, as long as the contract is not recorded, you can change the provision of the prenuptial agreement at any time before recording.

Will the marriage contract be valid abroad?

The enforcement of the deed depends on the laws of the country where the parties reside and may not be valid in all cases. Couples who intend to move abroad should ensure that the agreement can be enforced in the country where they plan to reside in order to make the agreement enforceable.  For couples who have drafted a marriage agreement outside of Thailand but wish to come and reside in Thailand, they may decide to draft an additional agreement in accordance with Thai law.

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