Prenuptial Agreement

Though the topic of a prenuptial agreement or "prenup" may not seem romantic for some couples and is not widely used in Thailand, having this valuable tool can minimize the disputes over the division of assets upon marriage dissolution or divorce. Regardless of whether the couple is in Phuket or other parts of Thailand, one of the most common disputes is concerned with property division. A prenuptial agreement provides an instantaneous resolution as to how the marital assets, properties, or even liabilities shall be distributed between both parties. Without one, the assets will be allocated by the state according to applicable Thai Family Law.

This legally binding document offers a safer route, especially for individuals with a substantial amount of assets or those who simply prefer to be more cautious before taking that big leap in their lives and relationship.

It is strongly advised for the prenuptial agreement to be arranged by a qualified legal representative as the agreement will only be enforced if it is prepared and executed properly pursuant to the laws of Thailand.

What is a Prenuptial Agreement in Thailand’s Legal Term?

The prenuptial agreement, also known as the premarital agreement, is a written contract made between the marrying parties before marriage. The contract comprises the list of personal and marital assets and properties owned by the individuals. It declares the entitlement of those possessions during the duration of the marriage as well as upon separation of the husband and wife.

The agreement supersedes the Thai Family Law that would otherwise be enforced in circumstances where a prenuptial agreement has not been legally put into effect.

Property Ownership for Spouses Under Thai Family Law

What if a couple decides not to enter into a prenuptial agreement? The following shall apply.

Governed by Thai Family Law, the property of a married couple is classified into two categories of ownership including the separate property and the communal property.

The separate property or personal property consists of:

1. Property belonging to either party prior to marriage
2. Personal items, clothes, jewelry, or tools necessary to perform one’s profession
3. Property acquired by either party during the marriage through inheritance or as a gift
4. Engagement gift

The communal property consists of:

1. Property acquired by both parties during the marriage
2. Property acquired by either party during marriage through a written will or with a document declaring it as communal property
3. Property considered as the fruits of the separate/personal property

Upon dissolution of marriage or divorce, the communal property shall be divided equally between the two parties.

In case of uncertainty as to which category a property belongs to, it shall automatically be presumed as communal property. This is one of the many reasons why a prenuptial agreement can be advantageous.

The Benefits of a Prenuptial Agreement

Aside from protecting the personal property and finances of each spouse, having a prenuptial agreement has many other pros.

These include:

• Reduces the chance of a legal dispute, saving time and litigation fees.
• Divorce process becomes simpler with the terms and conditions already set forth and agreed by both parties.
• Liabilities for debt can be detailed and settled in such a manner that both parties do not share the debt.
• Ensures sufficient financial support for the children from the previous marriages, if any.
• Protects the rights and benefits of an individual’s business.

What Are the Requirements of a Valid and Enforceable Prenup in Phuket?

A prenuptial agreement is considered a legal contract. To ensure its effectiveness and validity, the agreement shall be prepared and executed according to the requirements indicated by the Civil and Commercial Code of Thailand.

• Drafting and execution of a prenuptial agreement – each party shall engage with a legal representative who is specialized in Thai Family Law to prepare the agreement. A qualified lawyer can provide guidance to the individuals regarding the provisions that should be included and protect the best interest of each spouse. Additionally, in case either party is a foreigner, the lawyer can assist with verifying the applicability of the agreement in his/her home country.
• Morality of the agreement - the clauses outlined in the agreement shall not be considered immoral, against public order, or unfair.
• No foreign law application – there must not be a clause in the agreement stating the governing or application of foreign law.
• Witnesses – the written prenuptial agreement shall be signed by both parties in the presence of at least two competent witnesses.
• Registration – the agreement must be carried out simultaneously with the marriage registration and shall be registered at the same district or amphur office where the marriage registration is set to take place. Both parties must entirely understand the content and voluntarily enter into the agreement. The registrar will then record in the marriage registration document that the spouses possess a valid prenuptial agreement.

What Should be Prepared for a Prenuptial Agreement Registration?

The parties should prepare the following documents to register for a prenuptial agreement.

• Passports or Thai ID cards of both parties
• Passports or Thai ID cards of two witnesses
• Prenuptial agreement validated by the trusted lawyers
• Attachments of lists of significant financial details including properties, assets, and debts

Since a prenuptial agreement contains crucial direction as to what will happen to an individual’s hard-earned assets or a business that took a long time to build, it is extremely important for both parties to fully acknowledge all of the provisions outlined in the contract.

Having a legal representative who is able to provide clear explanations and identify any loopholes can ensure the execution of a comprehensive and enforceable prenuptial agreement.

Speak to our marriage and family lawyer in Phuket who has years of experience in Thai Family Law. Our personalized service will provide you with the utmost protection, serving your and your partner’s best interest.

Siam Legal Phuket Law Firm

123 / 27-28 Moo 5, Bangtao Place, Cherngtalay, Thalang, Phuket, 83110, Thailand
Phone: +66 76 326 322

Siam Legal Phuket Location