Contested Divorce is the equivalent of Judicial Divorce in most jurisdictions.
Here, court action is necessarily resorted to by either or both parties because of certain circumstances attendant to the marriage which is sought to be terminated.
CONTESTED DIVORCE IS THE PROPER REMEDY IN THE FOLLOWING CIRCUMSTANCES:
When filing for a contested divorce, the spouse must be ready to prove at least one ground for divorce, as enumerated under Thai law. Additionally, he or she must be the proper party to file the petition. The guilty party cannot be the spouse to initiate the case, even if he is willing to implicate himself of the ground chosen. As we say, the one who comes to court is he who has clean hands.
Procedure for the Filing of a Contested Divorce
The spouse who petitions the court for the divorce is called the Plaintiff. As earlier mentioned, he or she must be the aggrieved party in the marriage. That party comes to court to seek relief in the form of a divorce.
Together with a lawyer, the Plaintiff must identify the ground to be used for the divorce. A lawyer is needed because identifying the ground does not end in designating it by its name. What is more important is how the ground can be substantiated through evidence. A lawyer will know if the Plaintiff has enough evidence to prove his claims against his spouse or not. Remember that the case must be able to stand alone even if the spouse is willing to admit the allegations, or if planning to contest the petition.
Once the ground is identified and the evidence is ascertained, preparation of the pleading follows. The pleading must state all the allegations which the Plaintiff wants the court to appreciate. The pleading must also be accompanied with the following documents:
- Photocopy of the Thai National ID for the Thai party;
- Photocopy of the latest passport for the foreign party;
- Photocopy of the marriage certificate;
- Photocopy of the Tabien Baan for the Thai party;
- Photocopy of the foreign party's ID bearing his/her residence or office address;
- Photocopy of the common children's birth certificates;
- Evidence proving the chosen ground/s for divorce.
Payment of Court Fees
Once ready with the pleading, the Plaintiff and his lawyer may file the case in the appropriate Family Court. Court fees have to be paid before the case is docketed. If the petition for divorce is accompanied with claims on marital property, the court fees shall be computed at 2% of the total amount of the claim. The court fees shall not, however, exceed 200,000 Thai Baht. If there are no claims on marital property, the court fee to be paid is only 1,000 Thai Baht.
Another fee to be paid is the Court Delivery Fee. This is paid for the delivery of summons to the Respondent. If the service is to be done within Thailand, the Plaintiff pays 1,000 Thai baht for the purpose. Should the service of Summons be for abroad, and will require service through diplomatic channels, the delivery fee to be paid is 5,000 Thai Baht.
Expenses for the conduct of the hearings are charged against the court fees. Less number of hearings mean less deductions on the fees paid. Any remainder from the court fee is returned to the Plaintiff 30 days after the judgment is rendered.
Service of Summons
Service of Summons is done in order for the court to have jurisdiction over the person of the Respondent. It also complies with the requirement of Due Process where a Respondent is given the opportunity to understand the case/s filed against him.
If within Thailand, service of summons may be done through personal service or registered mail. Depending on how the Summons is served, the Respondent is given a certain number of days to file his answer to the complaint.
If the Summons and Complaint are received and accepted by personal delivery, the Respondent is given 15 days to file his Answer. 15 days from the date of receipt is allowed if the Summons and Complaint is sent by registered mail and signed for by the Respondent.
On the other hand, the Respondent has 30 days to file his answer if the Summons and complaint is not accepted from the officer on delivery, either because the Respondent refused to receive them, or because the Respondent cannot be found, and the papers had to be posted to the Respondent's last registered address.
The Answer is the response of the Respondent to the Petition/Complaint of the Plaintiff. It should react to each and every point raised by the Plaintiff in the Complaint. Admissions or denials must be made expressly, including any counterclaim which the Respondent may have against the Plaintiff.
Order of Default and a Default Judgment
Within the given number of days, the Respondent must submit his Answer to the Complaint filed against him. If he fails to file an Answer, the Plaintiff may already file a motion in court to declare the Respondent in default. The Motion to Declare Respondent in Default must show evidence that the summons and complaint were delivered to the Respondent's address or otherwise served on him.
A party who is named in default loses all future opportunity to defend himself on the allegations made against him in the divorce case. He can no longer submit documents or give testimony opposing the claims of the petitioner.
The Plaintiff alone gets the opportunity to present proof on the allegations made in the petition.
Appearance at the Juvenile Observation and Protection Center
If the divorcing spouses have common children of minor age, they are called to make a mandatory appearance before the Juvenile Observation and Protection Center (fondly called the Juvenile Court). During the appearance, both parents and the children are invited to meet with the officer to discuss how the children's welfare shall be protected if the divorce is granted.
If the divorcing spouses have come to an Agreement on how to share custody and support of the children, they may present this before the officer during the appearance. The officer makes a determination on the fairness of the Agreement, as well as its feasibility.
In case no Agreement has been reached, the officer makes a recommendation on how the issue may be settled. The recommendation is forwarded to court for adjudication. The recommendation is of a very persuasive Character.
The officer may also recommend a mediator if the demands of the spouses cannot be settled. The mediator will try to work out differences before the matter is submitted to the court. Discussions or statements made in the course of the mediation cannot be used against the parties in subsequent stages of the divorce proceeding.
If the minor is already of school age, the Officer conducts an interview on the child to determine his preference on custody. The Court gives much regard to the preference of the child/ren.
The Pre-Trial is the first opportunity for spouses and their counsels to meet in trial court. The main purpose of the pre-trial is the determination of issues to be heard during the course of the hearing-proper, should it ensue.
The Pre-trial is also an opportunity for parties to settle their differences, or for the erring party to admit to the allegations outright.
Instead of determination of issues, the parties may also present to the court a Compromise or Settlement Agreement at this stage. If parties agree to divorce, as well as agree on all terms related to the sharing of child custody and marital property, they prepare the Agreement and present it to the judge at the Pre-Trial. If the Judge finds the Agreement to be fair and voluntarily entered into by the parties, it may order the conclusion of the case and make a judgment based on the Agreement of the spouses.
If no settlement is reached by the parties at Pre-Trial, hearing proper on the divorce follows. Hearing is usually scheduled within 60 days from the filing of the complaint.
Evidence and testimony from either or both parties is accepted and heard by the court. On the basis of the submissions and the testimony presented, the Judge makes a decision on whether or not the chosen ground for divorce exists, along with the issues on child custody sharing, child support and marital property division.
The decision judgment is released 30 days after the submission of the last pleading in court. It reaches finality if no timely appeal is taken by either or both parties to the case.