Last week we talked about the procedure for filing a prenuptial agreement in Thailand. This time we will explain the reason for having one - and what it can cover.
You'll recall that in recent articles we've talked about how property is owned during the marriage if there isn't a prenuptial agreement. In general, if a party has a property before the marriage, or receives it individually as a gift or through an estate during the marriage, it is considered individual property (sin suan tua). If the couple splits up, the property still belongs to that individual. Likewise, property acquired during the marriage, including salaries, income from individual property and property given to both husband and wife through gifts or an estate, is considered property of the marriage (sin somros). It is divided equally between the parties if they divorce.
With a prenuptial agreement you can, to a large degree, substitute whatever the parties agree upon for the rules mentioned above. For example, the prenuptial agreement can say that the salary of one of the parties will not be considered property of the marriage. If it says this, and the couple subsequently divorce, all of this salary accumulated would go to the party that earned it. It would not be split up, as it would without a prenuptial agreement.
There are limits on what the parties can agree to in a prenuptial agreement. Section 1465 of the Thai Civil and Commercial Code says: "Any clause in the prenuptial agreement contrary to public order or good morals, or providing that the relations between them as regards such properties are to be governed by foreign law, shall be void." The point about making foreign law controlling is pretty obvious. But how do you know if what you want to put in the agreement is contrary to public order or good morals?
Ultimately, if there were a fight over it, a court would decide. Whether a provision is in line with public order or good morals has been defined in past cases, and it has been shown that some issues should not be covered in a prenuptial agreement because doing so will be considered by a judge to violate public order and good morals.
Some important topics that should not be covered in the prenuptial agreement relate to child custody. The parties, for example, shouldn't agree in the prenuptial agreement that if they split up one of the parties automatically gets the child or children. Likewise, the parties shouldn't agree in the prenuptial agreement that if they split up they will contribute to the support of their children in a certain way. These are issues that are considered so important to society as a whole that the legal system should always have a say. A court would, therefore, consider covering these issues to violate public order and good morals.
Another issue that shouldn't be in a prenuptial agreement is alimony.
What if the parties want to provide in the prenuptial agreement that there will be absolutely no property of the marriage and that everything will belong to the individuals as though they were never married? Some commentators believe this is fine, because it's not explicitly prohibited by law. Others say that it has potential for unfairness and that it therefore violates public order and good morals. Thus, to play it safe, the prenuptial agreement should specifically name the items that are outside the property of the marriage. Examples of what could be agreed to be outside of the marriage are salaries and/or income from individual assets.
There is one other limit to the operation of a prenuptial agreement - the rights of third parties. What if, for example, a third party - who knew nothing about the prenuptial agreement - has a legal claim against a husband or wife that arises during the marriage? If such a claim would, without a prenuptial agreement, entitle the third party to part of the property of the marriage, the court might award such property to the third party. This might be the case even if the husband and wife had a prenuptial agreement to the effect that the spouse against whom there was no claim would keep his or her own salary or other income separate.
James Finch of Chavalit Finch & Partners
(finch@chavalitfinchlaw.com)
and Nilobon Tangprasit of Siam City Law Offices Ltd
(nilobon@siamcitylaw.com)
For more information visit
http://www.chavalitfinchlaw.com.
Comments? Questions? Contact us
at the email addresses above.
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