Can I Get a Prenup in Thailand? Yes, But Make Sure it is a Good One
KEEPING THE PRENUPTIAL AGREEMENT BALL IN YOUR COURT IN THAILAND
There is one major way of dealing with this issue and that is a choice of law provision. Essentially a choice of law provision is a section in an agreement in which the parties (you and your Thai fianc?or spouse) agree to have the agreement governed by the laws of a certain jurisdiction. This means that if you and your fiancee/spouse sign a prenuptial agreement that says the laws of the State of New York USA shall govern this agreement, then no matter where you or your Thai fianc?spouse decide to go to court the laws of the State of New York shall govern. Using this example say the two parties get divorced in Kansas and the Pre-nuptial Agreement has a choice of law provision that states that the laws of New York shall govern the agreement. In this case the Kansas Court MUST use the laws of New York just as if they were in New York when deciding how to interpret the prenuptial agreement and divide the assets from the marriage.
WHAT STANCE DO THAI COURTS TAKE ON CHOICE OF LAW CLAUSES?
As per the Thai Conflict of Laws Act of B.E. 2481 (1938): “The question as to what law is applicable to the essential elements or effects of a contract is determined by the intention of the parties thereto.” So if you and your Thai fianc?spouse make a provision in a prenuptial agreement that expressly states what law will govern the agreement, then said law will govern.
This means that if you and your Thai fianc?or wife draft and endorse a Prenuptial agreement with a Choice of Law provision, then said provision should be upheld by the Thai Courts. So if you specify that the Law of the State of New York shall govern the agreement then the Thai Courts will NOT USE THAI LAW TO INTERPRETE AND GOVERN THE AGREEMENT, BUT INSTEAD USE THE LAW OF THE STATE OF NEW YORK. A choice of law provision can be a very advantageous addition to a Prenuptial Agreement because it allows the non-Thai spouse the benefit of having his or her home law govern the Agreement, this can be of great advantage because the non-Thai spouse often cannot read Thai and is unfamiliar with Thailand’s legal system (which is in some ways very different from the legal system in common-law countries).
USING CHOICE OF FORUM PROVISIONS TO CHOOSE WHERE THE THAI PRENUPTIAL AGREEMENT SHALL BE AJUDGED.
Also an agreement can stipulate a choice of forum provision (forum being the jurisdiction where the case will be judged) provided the governing law allows for choice of forum provisions. This can be advantageous because it takes the case completely out of Thailand and into the Forum of the Parties choosing. Using the example above, the parties have chosen New York law to govern and have chosen New York as the Forum state, but the Thai spouse brings a proceeding in Thailand. All the American spouse needs to do is go to court and make a motion to have the case dismissed because the forum is improper based upon the fact that the parties agreed in the in the prenuptial agreement to use New York Law and have the State of New York as the forum for all disputes arising from the agreement. If the law of the State of New York upholds choice of forum provisions then it stands to reason that the Thai court will dismiss the case citing New York as the proper forum for adjudication.
Thanks for reading,
Benjamin W. Hart, Esq.
The information imparted herein is intended for informational use only and should not be used as a replacement for competent legal advice from a professional.
Originally published here.
Benjamin W. Hart, Esq. is a US Immigration Lawyer and member of the American Immigration Lawyers Association. He lives and works in Bangkok, Thailand. He is the President & Managing Director of Integrity Legal, an Immigration Law Office in Thailand and the US. Visit Integrity Legal on the Web at http://www.integrity-legal.com