Grounds for Divorce - Explained
Section 1516 of the Thai Civil and Commercial Code lists the grounds for divorce in Thailand. At least one of these grounds must be present and ready to be proved in court. However, a petitioning party may file his complaint with as many grounds as he can possibly site, as long as these can be property substantiated in court during the trial. Below is a verbatim enumeration of these grounds, with some notes on its construction.
The husband has given maintenance to or honored such other woman as his wife, or the wife has committed adultery, the other spouse may enter a claim for divorce;
The above ground is based on either party's having extra-marital affairs. The promise of fidelity is breached and causes a serious strain to the marriage. The offended party is that who may file for divorce on this ground. If the filing spouse has himself/herself committed an act of infidelity during the marriage, this can negate his/her claim for divorce, unless there are other grounds which he or she can use for the case.
One spouse is guilty of misconduct, notwithstanding whether such misconduct is a criminal offence or not, if it causes the other: to be seriously ashamed; to be insulted or hated on account of continuance of being the husband or wife of the spouse having committed the misconduct; or to sustain excessive injury or trouble where the condition, position and cohabitation as husband and wife are taken into consideration; the latter may enter a claim for divorce;
Misconduct, whether criminal or not, can be a ground for divorce only of any of the mentioned circumstances qualify the misconduct. The misconduct is one that must cause grave embarrassment or humiliation to the innocent spouse, such that staying married to the erring party would cause him/her to be unduly dishonored.
One spouse has caused serious harm or torture to the body or mind of the other; or has seriously insulted the other or his or her ascendants, the latter may enter a claim for divorce;
There are two grounds available under No. 3. The first is the infliction of physical, mental or psychological harm against the other. This is self-explanatory.
The other ground is serious insult on the person of the innocent spouse or her family. In Thai culture, children-in-law are expected to respect not only their spouse but the family as well, especially the elders. Any serious insult thrown at the spouse or her family is made a ground for divorce because Thais believe that respect is an essential foundation of a healthy family life.
One spouse has deserted the other for more than one year, the latter may enter a claim for divorce;
In this ground, the leaving party must have left the family home without the other spouse's consent. The abandonment must also be characterized by the abandoning party's non-willingness to continue or resume family life with the abandoned spouse.
One spouse had been sentenced by final judgment of the Court and has been imprisoned for more than a year in the offence committed without any participation, consent or in the knowledge of the other, and the cohabitation as husband and wife will cause the other party to sustain excessive injury or trouble, the latter may enter a claim for divorce;
A spouse whose husband or wife had been serving a prison term of at least a year may file for divorce, provided that he/she did not have any participation in the crime which led to the imprisonment. Imprisonment naturally makes it very difficult, if not impossible, for the committed spouse to fulfill his/her duties as a spouse and a parent. Being in prison also taints the family name, and may out the family in a bad light long after the crime has been committed and the prison term fully served.
The husband and wife voluntarily live separately because of being unable to cohabit peacefully for more than three years, or live separately for more than three years, by the order of the Court, either spouse may enter a claim for divorce;
This ground pertains to the mutual decision of the married parties to separate from one another in order to avoid further conflict within the family home. The separation may also be because of a court injunction order instructing a party to stay away from the family.
One person has been adjudged to have disappeared, or has left his or her domicile or residence for more than three years and being uncertain whether he or she is living or dead;
A spouse who had not been heard of by his/her family for at least three years may be declared as presumptively dead by the courts. Diligent search for the missing person must have been exerted by the family. Mere absence for at least three years will not suffice.
One spouse has failed to give proper maintenance and support to the other, or committed acts seriously adverse to the relationship of husband and wife to such an extent that the other has been in excessive trouble where the condition, position and cohabitation as husband and wife are taken into consideration, the latter may enter a claim for divorce;
The above provides for two grounds. The first is failure to support one's family financially for at least a year. Support, being an essential obligation in a marriage, cannot be withheld to the detriment of the other spouse and the entire family. While traditionally, it is the husband who provides for the family, the law does not limit application of this ground against the husband alone. It may also be interpreted to be against the wife who is the primary source of finances for the family's maintenance.
The other ground is construed as a catch-all clause for all acts which result in an adverse family relationship. Any and all acts which make marital life impossible can come under this ground. However, this ground cannot be used loosely or indiscriminately. The character of the act, as well as its effect on the marriage must be so grave that continuing a family life with the erring party would subject the innocent party to very complex difficulties. Absent this characterization, the courts may dismiss the petition and stamp it as baseless and frivolous.
One spouse has been an insane person for more than three years continuously and such insanity is hardly curable so that the continuance of marriage cannot be expected, the other may enter a claim for divorce;
Any apparent mental illness, or any testimony from family members or friends will not suffice to prove the presence of such mental challenge. The illness should have been diagnosed as positive and incurable by a qualified professional.
One spouse has broken a bond of good behavior executed by him or her, the other may enter a claim for divorce;
The "bond" in this listing pertains to a written bond or contract entered into by the parties before their marriage. The bond must state which acts shall be considered as “good behavior” during the union. If one does not keep within the terms of the bond, the obeying party may petition for divorce.
One spouse is suffering from a communicable and dangerous disease which is incurable and may cause injury to the other, the latter may enter a claim for divorce;
Same as in a previous ground, the disease must be professionally diagnosed as communicable and incurable before this can be used as a ground for the divorce.
One spouse has a physical disadvantage so as to be permanently unable to cohabit as husband and wife, the other may enter a claim for divorce.
This ground points to a sexual difficulty by either husband or wife, which makes sexual relations and /or reproduction difficult or even impossible.