Contested Divorce in Thailand
Who may avail of this type of divorce?
Couples who registered their marriage in Thailand may file for contested divorce if:
- One party has a ground to divorce the other spouse and the latter is unwilling to sever the marriage;
- There are issues on marital property sharing and child custody, and the issues cannot be settled amicably between the parties.
CAN COUPLES WHO DID NOT REGISTER THEIR MARRIAGE IN THAILAND AVAIL OF CONTESTED DIVORCE IN THAILAND?
As a general rule, no. However, couples who did not register their marriage may request the Thai courts to assume jurisdiction over their divorce on the basis of important considerations, like:
- One party is a Thai national;
- The cause of action for the divorce arose in Thailand;
- One or both parties have resided or worked in Thailand for a considerable period of time.
WHAT ARE THE GROUNDS FOR DIVORCE?
The Thai Civil and Commercial Code provides for the following grounds for divorce:
- The husband has taken another woman as his wife;
- The wife has committed adultery;
- One party is guilty of misconduct, causing the other spouse or be seriously ashamed, to be insulted, or to sustain injury or trouble if the marriage is continued;
- One spouse has seriously harmed or tortured the body or mind of the other;
- One spouse has seriously insulted the other spouse or his/her ascendants;
- One spouse has deserted the other for more than a year;
- One spouse has been sentenced by final judgment and has been imprisoned for more than a year;
- The spouses have voluntarily lived separately for more than three years;
- The spouses have lived separately for more than three years by order of the court;
- One spouse has been adjudged as to have disappeared for more than three years, and there is uncertainty whether he or she is still alive;
- One spouse has failed to give proper maintenance or support to the other, or has committed acts seriously adverse to the relationship;
- One spouse has been suffering from insanity for at least three years, and such insanity appears to be incurable;
- One spouse has broken the bond of good behavior;
- One spouse is suffering from a communicable and dangerous disease which is incurable and may cause injury to the other;
- One spouse has a physical disadvantage so as to be permanently unable to cohabit with the other.
See the grounds for divorce in Thailand here.
MY SPOUSE AND I AGREE TO DIVORCE. WE ARE GOING FOR A CONTESTED DIVORCE ONLY BECAUSE WE DO NOT AGREE ON CHILD CUSTODY MATTERS. DO WE STILL NEED TO INDICATE A GROUND FOR DIVORCE IN THE PLEADING?
Yes, you must still state a ground for divorce in the pleading. The court will not assume jurisdiction over your case if there is a cause of action that needs to be addressed by the judiciary.
WHO MAY FILE FOR CONTESTED DIVORCE?
The innocent party has the right to lodge the divorce case against the erring spouse.
DOES HE/SHE NEED TO FILE THE CASE PERSONALLY?
No. The filing party may be represented by a lawyer when he files the case before the Thai courts. Your lawyer must be ready to present a Power of Attorney for that purpose.
CAN THE FILING PARTY BE REPRESENTED BY COUNSEL ALL THROUGHOUT THE PROCEEDINGS?
No. There are stages in the proceedings which will have to be attended by the litigant himself. He or she will be called to appear at least once to give his/her testimony against the erring spouse. If there are common children involved, the parties will also be called to appear before the Juvenile Court.
WHAT IF THE ERRING PARTY DOES NOT ANSWER THE PLEADINGS OR APPEAR IN COURT?
He/she will be declared in default by the court.
WHAT IS THE EFFECT IF A PARTY IS DECLARED IN DEFAULT?
The party held in default loses his/her right to present evidence against the other party. The court will hear and decide the merits of the case solely on the basis of the active party alone.
HOW DO I KNOW IF I HAVE ENOUGH EVIDENCE TO PROVE THE CHOSEN GROUND FOR DIVORCE?
Your lawyer is expected to give you an honest assessment of the strength of the evidence that you will be presenting before the court.
HOW LONG DOES A CONTESTED DIVORCE CASE TAKE TO FINISH?
It takes an average of six months for the court to finish hearing a contested divorce case. The case timeline also depends much on the cooperation of the parties, as well as the calendar of the court.
If service of divorce documents need to be done abroad, expect a longer timeline for your case.
HOW WILL MARITAL PROPERTY BE SHARED BETWEEN THE PARTIES? HOW ABOUT CHILD CUSTODY?
In a divorce case, the court will expectedly tackle the issues on the sharing of marital property and child custody. If the spouses have come to an agreement as regards these issues, the court will respect such agreement and include it in the case decision. However, if the couple cannot amicably settle one or both issues, the court will be forced to resolve the issue/s. The court shall be guided by Thai laws and circumstances attendant to the parties when resolving the differences.
ARE THERE OTHER THINGS WE NEED TO DO AFTER OUR DIVORCE IS GRANTED?
Yes. For the benefit of the foreign party, he or she must have the divorce decree translated to English. After the translation, it must be legalized at the Ministry of Foreign Affairs of Thailand. He or she must also check with his/her Embassy/Consulate in Thailand on whether or not the decree needs to be submitted or reported there.
For the Thai national, the decree must be recorded in the amphur nearest to his/her residence. Thai women likewise need to report the divorce and return to the use of their maiden names.
WE HAVE BEGUN CONTESTED DIVORCE PROCEEDINGS BUT ARE NOW CONTEMPLATING ON HAVING AN UNCONTESTED DIVORCE. IS THIS POSSIBLE?
Yes. The filing party or even both parties may withdraw the contested divorce case anytime after it is filed and have an uncontested divorce instead. Be reminded, of course that an uncontested divorce may be resorted to by the parties if they had registered their marriage in Thailand.