Marriage Between a Thai and a Westerner
What are the conflict of law issues when dealing with the marriage between a Thai national and a foreigner?
When there is a dispute between the laws of multiple countries, Thailand looks at its conflict of law rules. Which court has jurisdiction over the case? Which country’s laws are used to decide the issue? Will the Thai court enforce an order of a foreign country?
The Conflict of Law rules for Thailand is generally stated as follows:
- If there is a conflict of courts, the country where the event giving claim to the action took place will have jurisdiction.
- If there is a conflict of laws, the country’s laws where the event giving claim to the action took place will govern the case.
- If the law of a foreign country governs, it will be applied as long as it is not contrary to the public order or good morals of Thailand.
So how does this effect family law cases between a Thai national and a foreigner?
When a marriage is entered into outside of Thailand, a Thai family court will generally not accept a divorce unless the parties confirm that they have no objection to the court having jurisdiction. If there is a conflict on the Thai court’s jurisdiction, the parties will have to return to the place of marriage to get a divorce.
Thailand will recognize a foreign marriage or a foreign divorce if obtained in accordance with the laws of that foreign country as long as it isn’t against the public order or good moral of Thailand. But a Thai court will not make modifications to a court order that has been rendered by a foreign court such as custody, alimony, or property orders. The parties can file a case for new custody, alimony, or property orders with the Thai court.
A foreign prenuptial agreement is generally recognized in Thailand as long as the prenuptial agreement is not contrary to the public order or good morals. A Thai court will also not accept the validity of a prenuptial agreement that has a choice of law provision that the pre-nuptial agreement is governed by a foreign law. If the foreign prenuptial agreement does not have a foreign choice of law provision, a Thai court will accept the agreement as long as it complies with Thai laws and is not contrary to the public order or good morals of Thailand.
In Thailand, a prenuptial agreement must be signed by both parties and two witnesses. In addition, the prenuptial agreement needs to be filed with the Thai government prior to the marriage. If the couple fails to comply with the requirements of Thai law, then the agreement is void and a Thai court will refuse to enforce it. So if the foreign prenuptial agreement and the marriage occurred prior to its filing in Thailand, the foreign prenuptial agreement will not be recognized by Thai courts because it did not comply with Thai requirements under the law.
However, in most western countries, prenuptial agreements are considered private agreements and are not filed with the government. A Thai prenuptial agreement will be recognized in a foreign country depending on the conflict of law rules of that country. Many countries might also have special rules in regards to prenuptial agreements to ensure that the parties understood the terms of the agreement and voluntarily signed the agreement.
Marriage is simple when both parties do not have any property. Marriage is much more complex when one or both parties have a job, financial assets, or children. Before you get married, it is well advised to seek counsel of a licensed family attorney in the unlikely event of a break up.
To register your marriage in Thailand, visit this page.
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Siam Legal is an international law firm with experienced lawyers, attorneys, and solicitors both in Thailand law and international law. This Thailand law firm offers comprehensive legal services in Thailand to both local and foreign clients for Litigation such as civil & criminal cases, labor disputes, commercial cases, divorce, adoption, extradition, fraud, and drug cases. Other legal expertise of the law firm varied in cases involving corporate law such as company registration & Thailand BOI, family law, property law, and private investigation.