Prenuptial agreement with clause that restricts certain behavior of the spouses during marriage
Prenuptial agreements are normally meant for couples to agree on how to divide marital or separate property in the event of divorce. However, an interesting legal issue is whether a prenuptial agreement allowed to have a clause that only restricts certain behavior of the spouses during marriage; for example, is a prenuptial agreement allowed to state that Wife is not allowed to cheat on Husband during the marriage? A preliminary reading of the Civil and Commercial Code would suggest that the answer is negative, since prenuptial agreements are only meant to concern property of husband and wife, not their conduct:
- “Section 1465. Where the husband and wife have not, previous to their marriage, concluded a special agreement concerning their properties, the relations between them as regards to their properties shall be governed by the provisions of this Chapter.”
- Section 1465 also states that any prenuptial agreement that is contrary to public order or good morals is void.
However, in Thai Supreme Court Decision No. 2553/2526, the Court actually upheld a “prenuptial agreement” (of sorts) concerning behavior of the spouses. The facts were as follows:
- Husband and Wife had a marriage ceremony and began living together on March 21, 1978. However, they did not legally register their marriage until two years later on June 2, 1980.
- Husband claimed that during the time they had lived together before legally registering their marriage, Wife harshly insulted Husband and his parents on a regular basis and enjoyed spending her evenings going out with other men and that this caused Husband to suffer embarrassment.
- Husband and Wife then agreed to enter into a written contract on May 12, 1979, before they had registered their marriage the following year, in which Wife promised to “conduct herself as a proper wife” and to refrain from being unfaithful with other men during their marriage or to pay a fine of 50,000 baht if she should break her promise.
- Perhaps not surprisingly, some time after they had registered their marriage, Wife broke the aforementioned promise. Husband subsequently filed for divorce and prayed to the Court that it enforce the 50,000 baht fine.
- The Court of First Instance decreed the couple divorced but ruled that the contract was an invalid prenuptial agreement and unenforceable. Husband appealed the decision.
- Wife resisted the fine on the grounds that the prenuptial agreement was not entered into the Marriage Register as required by Section 1466 of the Civil and Commercial Code.
The Supreme Court ruled in favor of Husband and held that Husband and Wife were bound by the contract because it had the effect of being a promise to refrain from behavior as described in one of the grounds for divorce, specifically Section 1516(8) of the Code, which is where one spouse may file for divorce if the other “has violated a bond of good behavior made by him or her…” Furthermore, the contract was not void for being against public order or good morals; on the contrary, it promoted public order and good morals because it encouraged Husband and Wife to live together in peace and harmony. However, the Court felt that the 50,000 baht fine was too harsh and ordered Wife to pay a reduced fine of 25,000 baht pursuant to Section 383 of the Code.
In any case, there could be a variety of grounds that one spouse may challenge a prenuptial agreement during divorce, it is therefore strongly recommended that one retain the assistance of competent Thailand Lawyers in drafting the agreement and in enforcing it in court.
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