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Thailand Family Legal Services

Divorce cases

Divorce is the termination of a marriage which can occur only if the husband and wife have legally registered their marriage. There are two types of divorce in Thailand: uncontested divorce and contested divorce.

  • An uncontested divorce is where both parties agree to divorce and apply for a Divorce Certificate at the district office. This type of divorce is a simple and straightforward process and there are no expenses incurred.
  • A contested divorce is a divorce in which either spouse does not agree to divorce, making it impossible to proceed with a divorce. Therefore, the spouse who wants a divorce must file a lawsuit for the court to make decisions for them which is a complicated process, and the process requires a person with special expertise such as lawyers, legal advisors, lawyers at the Juvenile and Family Court, etc. Such actions also have costs incurred as well as professional lawyer fees, court fees in case of having marital property division and claiming alimony, postage costs of documents and summons, etc. In addition, the spouse who wants a divorce won’t be able to file a lawsuit if there is no valid reason that is required by law.

Thai law prescribes 10 grounds for divorce under the Civil and Commercial Code, Section 1516, as follows:

  1. Husband or wife fosters or honors others as their spouses, commits adultery, or has sex with others.
  2. Husband or wife behaves badly. Whether the bad conduct is a crime or not if it causes the other party
    1. To be severely humiliated
    2. To be despised and hated on account of continuing to be the spouse of the party that is behaving badly
    3. To suffer or be damaged when coexisting as husband and wife
  3. Husband or wife abuses or tortures the other party or the other party’s parents physically or mentally. If it is serious, the other party can file for a divorce.
  4. Husband or wife intentionally abandons the other party for more than one year.

(4/2) Husband or wife is sentenced to imprisonment and has been imprisoned for more than one year for an offense in which the other party did not contribute or consented or conceived in the commission of such offense, and staying married will cause damage to the other party.

(4/2) Husband and wife voluntarily separated because of the inability to live together happily as husband and wife for more than three years or have been separated by the order of the court for more than three years.

  1. Husband or wife was declared missing or left his place of residence for more than three years without anyone knowing for sure if they are alive or not.
  2. Husband or wife fails to provide reasonable assistance and maintenance to the other or acts in gross hostility towards being a husband or wife. If such act reaches the level that put the other party in unreasonable trouble when coexistence as husband and wife, the other party can file for a divorce.
  3. Husband or wife has been psychotic for more than three years and the psychosis is incurable. Also, if the insanity reaches the point that they are unable to live together as husband and wife, the other party can file for a divorce.
  4. Husband or wife breaks the parole made in writing on behavior. The other party can file for a divorce.
  5. Husband or wife has a serious contagious disease that poses a danger to the other and the disease is chronic and incurable.
  6. Husband or wife has a physical condition that prevents their spouse from having sexual intercourse forever.

When a divorce has been filed, the petitioner can also claim rights in accordance with the law such as spousal and child maintenance, living allowance in case the divorce is caused by the fault of the other party, compensation in case the divorce is caused by the adultery of the other party, marital property division, and including child custody.

Marital Property

Marital property is any property acquired during the marriage. This means any property acquired by either party during the marriage is considered as marital property; for example, salary, bonuses, houses and land that are registered after marriage, and cars. Therefore, to consider whether any property is marital property or not, it is necessary to consider whether the husband and wife are legally registered for marriage or not.

When any property becomes marital property, each spouse is entitled to half of that property. Any act or execution related to certain marital property must always be managed jointly or with the consent of the other party, i.e.:

  1. Sale, exchange, selling on consignment, hire-purchase, mortgage, mortgage release, or transferring mortgage right
  2. Establishing or ending all or part of the servitude, right of habitation, right of superficies, usufruct or encumbrance on immovable property
  3. Renting an immovable property for more than three years
  4. Lending money
  5. Giving by affection, excluding giving in a reasonable amount as family status for charity, society, and ethical duties
  6. Compromise
  7. Submitting a dispute to arbitration
  8. Taking property as security against the officer or the court.

Management of marital property apart from stated above, either party can manage it without the consent of the other party. They can also make a will to pass their part of marital property to others as well. When a marriage ends for any reason, it is necessary to divide the marital property in half. If the spouse wishes to divorce but is unable to agree on the marital property, they can exercise the right to file a lawsuit for the division of the marital property.

In addition, if any spouse does not want the property acquired during the marriage to become marital property, a prenuptial agreement on the property must be made before the marriage. The agreement must be stated in the marriage certificate with the signatures of at least 2 witnesses.

Child Custody – Parental Power

Child custody is the right and duty that parents should have toward their underage children. Parents with custodial authority have the right to make decisions about their children, for example, parents are obliged to take care of their children, teach them to behave, set their address, reasonably discipline them, allow them to work in accordance with their ability and status, reclaim children from another person who illegally detained them, manage their assets, etc.

Underage children must be under the authority of their parents. In the event that parents are not legally married, only the mother can exercise custody rights over the child. If the father wants to have custody over the child, he must make the child a legitimate child of his first. The parental power may be with either party if there are conditions stipulated by the law, for example, father or mother is dead, no one knows if the father or mother is alive or dead, mother or father is judged incompetent or quasi-incompetent by the court. If the child does not have parents or parents have been deprived of parental authority, the person who exercises custody over the child will be a guardian whose parental power is appointed by the court.

Child custody is very important. The determination of parental authority cannot be made arbitrarily between the parents in every matter because it can only be determined as regulated by the law. In addition, either party must always file a petition or a lawsuit to get a judicial order for sole parental power to deal with any matter relating to the child such as the address, educational institution, livelihood of the child, etc., for the best interests of the child. Nevertheless, the law does not allow the person with parental power to manage the child’s property unauthorizedly. For any juristic act relating to any property of the child, the person with parental power must obtain permission from the court before doing so every time. Otherwise, those acts such as sale, exchange, selling on consignment, hire-purchase, mortgage, mortgage release, real estate rental, money lending, compromise, etc., will be void.

Child custody can be terminated in two cases:

  1. Ends according to the law when the child reaches the age of majority
  2. Terminated by court order when the exerciser is judged incompetent or quasi-incompetent, abuses the power, severely misconducts, or manages the child’s property in a detrimental way. In this case, the court may revoke the custody of the child. The request for revocation can also be applied to the divorce proceedings at the same time.

Spousal and Child Support

In a family case, support costs can be considered in two parts:

  1. Child support between parents and children (must be a child’s legal father).
  2. Spousal support between husband and wife.

Child Support Between Parents and Children

Parents are obliged to provide proper care and education for their underage children, which means the law stipulates the period of child support only until the child has reached the age of majority or has turned 20 unless the child is in a state of disability. While parents are legally and morally obliged to support their children, the duty of caring for parents that a child has to do is different. The law does not specify a period of time for a child to begin caring for his or her parents from what age and for how long. When there is negligence or lack of care or inadequate care, the law entitles those who are supposed to receive support to sue for support from the other party from the date the other party did not provide the maintenance. By filing this lawsuit, the father or mother can file a lawsuit both for their own and for the child’s support on behalf of the child as well.

Spousal Support Between Husband and Wife

Spousal support is different from child support because the law states that husband and wife must live together and both of them must help and support each other according to their abilities and status. In the event that the husband or wife lacks in providing maintenance and support for the other, causing the other party to suffer unduly, the party who is in unreasonable trouble can sue for alimony and cite this as one of the grounds for filing for divorce.

For the determination of spousal support and child support, if there is a lawsuit, the court may or may not approve it by considering the ability and status of the person who is obliged to. Once the court approved, it can be revoked, reduced, or increased later as well.

Child Registration

A child born to parents who are not legally married will be the legal child of the mother only. The father who did not register the marriage with the child’s mother is not the lawful father, likewise, such a child is not the father’s lawful child. As a result, there are no legal rights and duties between them, in other words, the father is not the rightful representative to act on behalf of the child such as giving consent to do various juristic acts. He also has no parental authority, no duty to support children, no right to inherit the child, no right to claim any damages in consequence of the child being violated, etc. At the same time, the child is not obligated to take care of his or her father and has no right of inheritance if the father does not certify the child in practice.

Child registration is one of the legal methods that can turn a child into a legitimate child of the father. The child must be registered with the registrar with the consent of the mother and the child. If the mother or child objects to registration, the father is obliged to submit a petition to the court for the court to render judgment that the child is a legitimate child. Then, bring the court’s judgment to the registrar and complete the registration without having to seek consent from the child and the mother again. However, in practice, most people will submit a petition to the court for the court to pass the judgment first and register the child later to avoid objection.

Child Adoption

Adoptive parents and the adopted child are not people that share the same blood. Child adoption happens from mutual consent between adoptive parents and the child’s biological parents or the adopted child themselves. Child adoption exists for a child to obtain good foster care or for the adopter to have a minor as their own lawful child. When a child is registered for adoption, the law will grant the child the same status and rights such as the right to inherit and the right to use the adoptive father’s or mother’s surname as the legitimate child of the adoptive parent immediately from the date of registration. The adoptive father or mother, on the other hand, has no right to inherit the adopted child. In addition, the adopted child has not lost any of the rights that should be accrued under the law in their former family, that is, they still have the right to inherit the biological parents and the biological parents have the right to reasonably come and visit the child.

The law also protects children when their adoptive father or mother wants to stop fostering them. The adoptive parents must first obtain the consent of the real parents and they cannot sue for the termination of the child’s adoption without reasonable cause.

The child adoption process is complete only when it is registered. If the adopted child is a minor, the adoptive parents must first comply with the law on adoption. The qualifications of the adopter and the adoptee are:

  1. The adopter must be at least 25 years old and must be at least 15 years older than the adoptee.
  2. The adoptee who is 15 years old and above must give his/her consent.
  3. The adoptee who is a minor must obtain the consent of his/her biological parents or guardian.
  4. If the adopter or the adoptee has a spouse, the consent of the spouse must be obtained first.
  5. A minor who is adopted by one person cannot get adopted by another person at the same time unless he/she is the adopted child of the adopter’s spouse.

Once the child is adopted, the adoption can also be canceled. The law provides two methods for termination of adoption:

  1. Termination of adoption by agreement between the adopter and the adoptee in the event that the adoptee has reached his/her legal age or by having the consent of the father and mother in the event that the adoptee is underage
  2. Termination of adoption by filing a lawsuit when any cause as prescribed by law is present.

Wills

A will is a declaration of one’s intent in matters of one’s own property or any acts which will come into effect when the testator dies. A will is considered to be a unilateral juristic act that is stipulated by the law because it is crucial to the property of the deceased. The law stipulates 5 forms of wills as follows:

1. Simple will

A simple will must be made in writing, which can be written or printed in Thai or foreign languages, dated at the time of making, and signed by the testator in the presence of at least two witnesses at the same time. The testator can either sign or print his/her finger but the witnesses who certify the testator’s signature must sign only.

2. Holographic will

Holographic will must be made by the testator in his/her own handwriting only, either in Thai or foreign languages. It cannot be written by another person on the testator’s behalf. Therefore, this form of will cannot be made if the testator is unable to write. A will like this may or may not have witnesses because it is not stipulated by the law. This will must also be dated at the time of making and signed by the testator only, that is, fingerprint and mark signatures are not accepted.

3. Will by public document

The testator must file a request to a district-chief officer of any district to declare the wishes he/she wants to put in the will before at least two witnesses at the same time. The district-chief officer shall write down the declaration of the testator and read it to the testator and witnesses. When the testator sees that the statement written down by the district-chief officer is in correspondence with the declaration, the testator and witnesses shall sign their names. Then, the district-chief officer shall sign and date it by himself on the statement he wrote to certify that the will has been made in accordance with the rules stated above and stamp his position seal.
A will made by a public document does not always necessarily have to be done in the district office or the sub-district. If the testator makes a request, he may do so outside the district office or the sub-district office.

4. Secret will

After making a will document, the testator must seal and affix his/her signature to the seal. Then, bring the sealed will to show before the district-chief officer and at least 2 witnesses at the district office or a sub-district office and declare to all those people that the sealed document is his/her will. The district-chief officer will note down the statement of the testator and the date of the will, put it in the folded envelope, and stamp his position seal. Then, the district-chief officer and witnesses must sign on the envelope.

5. Oral wil

5.This will may be made in exceptional circumstances in which the testator cannot make a will according to other forms prescribed by law such as being in danger of near-death or during an epidemic or a war. If the testator, in such circumstances, could not find the stationery tools in a timely manner or died before he/she found it, he/she can make an oral will by expressing his intention in front of at least two witnesses present at the same time. Then, all witnesses must present themselves at the district office without delay and inform the district-chief officer the statement that the testator has verbally declared, the date and the place of the will, and the special circumstance that prevents the making of a will in any other form prescribed by law.

It is very important to make a will in accordance with the forms prescribed by law because it affects the validity of the will. To determine conditions in a will about property and rights existed before death, the testator should consult with a lawyer or legal consultant in preparing the will.

Heritages

Heritages are all of the property belong to the deceased, including the rights and responsibilities at the time of his/her death as well. An inheritance and a will are not the same thing but are often related because they are involved in the same the property of the deceased. If the deceased did not make a will to specify the inheritors, the property of the deceased will be passed on to the statutory heirs immediately upon death.

When a death occurs, the heritages, rights, duties, and responsibilities of the deceased shall fall to the heirs. However, even if the heirs have the right to inherit, the administration of estates is not an easy thing to do because the person who has the authority to administrate the estate of the deceased is the executor.

An executor is a person who has the legal authority and duty to administrate the estate of a deceased person. An executor can be appointed in two ways; appointed by will and by court order in cases that a will was not made or a will did not specified the executor. In the latter case, a problem in the distribution of the estate must be present and the heirs have the right to inherit must file a petition to the court for the appointment of an executor. The person applying or appointed to be an executor may be an heir or any person whose legal qualifications are as follows:

  1. Must be of legal age
  2. Not a person of unsound mind or a person who is judged quasi-incompetent by the court
  3. Not a person who has been adjudged bankrupt.

Applying or requesting any person to be an executor under the court’s order needs consent from all the heirs. If there is an objection in court, a court inquiry must enter to determine whether a person is suitable to be an executor, taking into account the best interests of the estate administration, or the court may appoint joint executors.

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