After we posted our last “How to Get Married in Thailand” video, we received questions about whether people married here can enter into an enforceable prenuptial agreement. The short answer is yes, you can. In this video, we’ll cover basic information about what prenups can include and how to make sure the agreement will be enforced.
As with any agreement of this sort, you should consult with a Thai legal professional, and our Thai legal team would be happy to host a free consultation so you can learn more.
So let’s start with what a prenuptial agreement is in Thailand. Essentially, it’s a legally binding contract between two people who intend to marry. It can cover how assets such as real property, cars, or investments will be treated during the marriage and if the marriage ends.
A prenup can also establish liability limitations, such as financial obligations and debt incurred before marriage. What these agreements cannot cover, limit, or dictate are personal or behavioral matters. For instance, a prenup cannot infringe on the rights of either party by specifying where the couple can reside or whether one spouse can work outside the home.
Now, I know that having a discussion about assets and obligations with a loved one can seem difficult and certainly isn’t romantic. However, there may be benefits for both spouses in being transparent going into the marriage and, if the marriage ends, these agreements can help avoid protracted disputes or at least frame negotiations to support a faster resolution.
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If you’re considering a prenuptial agreement, let’s talk about the basic Thai legal requirements that give the agreement full legal effect and make it enforceable by a Thai court. Again, this is for informational purposes only, and you must seek the advice of Thai counsel.
First, the agreement must be in writing and in Thai. Expats should obtain an accurate and trustworthy translation so the full implications of the agreement are clearly understood.
Second, and perhaps most importantly, the prenuptial agreement must be executed and filed with the district office where, and at the time, the marriage is being registered. Prenups created after the marriage is registered are invalid.
Also, the prenup cannot later be amended or altered, so it’s important to get it right the first time. As circumstances change over the years, married couples can address those changes through estate planning or post-marital agreements. Just don’t attempt to file an amended prenuptial agreement with the district office, as it won’t carry any legal weight.
Third, the agreement must be signed by both parties confirming their full understanding, and two witnesses must attest to those signatures.
So what will Thai courts look for when enforcing a prenup after a marriage ends?
First, the court will ask whether the agreement was submitted at the time the marriage was registered and whether it is attached to the marriage registration.
Next, the court will consider whether the terms are fair and not excessively one-sided. Your Thai legal counsel can help ensure that the agreement properly addresses both parties’ assets and obligations and is balanced.
The court will also want to ensure that the agreement was entered into freely and without coercion.
Finally, the court will want to know that both parties genuinely understood what they were signing. Making sure the Thai lawyer takes the time to explain the agreement, or even giving both parties the opportunity to have their own legal representation, can help address this aspect of enforceability.
Now, if you’re an expat looking to protect assets outside of Thailand, you’ll need to consult with a lawyer licensed in your home jurisdiction. In some cases, a second prenuptial agreement covering those foreign assets may be appropriate, or there may be other steps you can take to establish and protect assets that were yours prior to the marriage as separate property.
Again, this is jurisdiction-specific, so it’s always a good idea to speak with the appropriate licensed legal specialist.
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