Friday, January 16, 2015

International Divorce and Child Custody Issues Relating to Thailand

by Jeremy Morley
Family relationships between expats or people of different nationalities or domiciles in Thailand may create special issues that often require an analysis of the "big picture" by an international family lawyer.
All too often clients and even their local lawyers do not understand or focus on the specific benefits or dangers that may arise from the connections that one or both parties have with foreign jurisdictions.
A key role of the international family lawyer is to review the "big picture" of an actual or proposed family law case that has an international component. In most such cases the international family lawyer will work with local lawyers in the various jurisdictions.
Prenuptial Agreements. Such agreements are permitted under Thai law and will normally be enforceable there. However, for international people that is the beginning, and certainly not the end, of the story. It is often absolutely essential to consider the effect of a Thai prenuptial agreement if a divorce is initiated outside Thailand. That is particularly so because, when relationships between international people break down, one party often relocates to his or country of origin or to another place in the world.
Mutual Consent Divorces. In Thailand divorce may be obtained by mutual consent without going to court. It is a purely administrative procedure. Civil and Commercial Code, Sec. 1514. However, not only does one need to determine whether such a "quickie" divorce is obtainable (for example, it requires that you previously registered your marriage at a local district office) but you need to consider whether it is advisable. Such a divorce requires that  there are no disagreements over child custody or property. But you also need to ascertain whether the divorce will be recognized in other jurisdictions, not only by courts but also by administrative agencies such as immigration authorities in other countries.
Judicial Divorces in Thailand. It may well be preferable or necessary to seek a divorce through the courts in Thailand, but there are many issues to consider in this regard.
At the outset you must ascertain whether there are any grounds for a divorce. Under Thai law (Civil and Commercial Code, Sec. 1516), a judicial divorce may be obtained on any of the following grounds:
    1. Adultery;
    2. Misconduct causing shame or hatred to the other party;
    3. Serious harm or torture to the body or mind of the other;
    4. Serious insult to the other or his or her ascendants;
    5. Desertion for one year;
    6. Imprisonment for one year;
    7. Separation for three years;
    8. Disappearance for three years;
    9. Failure to provide proper maintenance and support;
    10. Incurable insanity for three years;
    11. Breach of a bond of good behavior;
    12. A communicable and dangerous disease which is incurable and may cause injury to the other; or
    13. A physical disadvantage so as to be permanently unable to cohabit as husband and wife.
However, a judicial divorce is also permitted by mutual consent if it is permitted by the law of the parties' common nationality Conflict of Laws Act, Sec. 26.
Furthermore a divorce cannot be granted by a Thai court unless it is permitted by the law of the parties' common nationality. Conflict of Laws Act, Sec. 26.
Division of Assets. The Thai law concerning the division of financial assets upon a divorce is set forth in the Civil and Commercial Code
There is a critical distinction between personal property, known as “"Sin Suan Tua”" and conjugal property, known as “"Sin Somros.”"
Sin Suan Tua (Code, Sec. 1471) consists of:
    (1) Property belonging to either spouse before marriage;
    (2) Property for personal use;
    (3) Items necessary for the person's job or profession;
    (4) Property acquired by either spouse during the marriage through a will or gift; and
    (5) Engagement gifts.
 Sin Somros (Code, Sec. 1474) consists of:
    (1) Property acquired during the marriage;
    (2) Property acquired by either spouse during the marriage by means of a deed declaring the item to be Sin Somros; and
    (3) The fruits of Sin Suan Tua.
In case of doubt as to the category of a property, it shall be presumed to be Sin Somros. Code, Sec. 1474
If Thai law applies, Sin Somros property is divided into equal shares between the parties upon a divorce. Code, Sec. 1533. Sin Suan Tua property is not divided upon a divorce. Obviously a key issue in cases in which a party has a business is whether the business is in one category or the other. The statute reads as if a business run by one spouse will be that spouse's separate Sin Suan Tua. If one party has disposed of property that required the permission of both spouses, the guilty spouse is liable for the destruction of the property and its value is taken into account during the division of the Sin Somros. Code, Section 1534.
If divorce is based on the fault of one spouse, who has intended to make the other party's situation so intolerable that an action for divorce has to be entered, the other party is entitled to "c“ompensation," ”which might be payable in one lump sum or periodically. Code, Secs. 1524-1525.
However, international people need to be aware of the Thai Conflict of Laws Act. Section 22 of that Act provides that, in the absence of a prenuptial agreement, issues concerning the property of the spouses upon a divorce are governed by the law of their common nationality but if they have different nationalities these  issues are governed by the law of the husband's nationality.  However issues concerning immovable property are determined by the law of the place where the property is situated.
Notwithstanding the above, it is very often not only sensible but essential for international people to consider whether their case should be brought in Thailand or whether there is jurisdiction in another location for a divorce case and whether there are advantages - and disadvantages - of doing so.
Child Custody Law in Thailand. Courts in Thailand Family courts are required to make child custody determinations based on determining the best interest of the child. Generally the court-established Observation and Protection Center will make a report and recommendations based on a social worker's evaluation of the parents and child. Despite the obligation to focus on what is best for the child,
Strategic International Family Law. We have long recommended that people with assets and international connections who are contemplating a divorce, as well as the spouses of such people, should first consult us for Strategic International Divorce Planning advice. Here is what we do for a motivated client (always working with local counsel as appropriate):
1.      Analyze the Family's Entire Economic Picture.
2.      Analyze and understand the issues concerning children, especially custody and visitation in the international context.
3.      Consult with the Client as to His or Her Goals.
4.      Provide an Initial Analysis of the Law in Several Different Possibly Appropriate Jurisdictions.
5.      Focus on a few jurisdictions.
For each "target jurisdiction" we look at:
          a) The jurisdictional rules. Will the courts in the target jurisdiction accept the anticipated divorce case, including all financial and child custody issues? What "facts on the ground" will need to be accomplished in order to satisfy the conditions?
          b) The grounds for a divorce. What will the client need to prove in the target jurisdiction in order to be entitled to a divorce? What evidence must the client secure in order to do so?
          c) The nature of the assets that are included in the target jurisdiction as property that is subject to being apportioned between the parties upon a divorce or that can be considered in making an economic apportionment between the spouses.
          d) The method of asset division that is used by courts in the target jurisdiction.
          e) The relevance of the conduct of the parties to the division of assets in the target jurisdiction.
          f) The philosophy of the courts in the target jurisdiction.
          g) Spousal maintenance. What are the rules concerning spousal maintenance (alimony). For what period of time might such payments be required? What is the likely amount of the award? Does the jurisdiction require a "clean break" whereby the spouse must receive a large lump-sum sufficient to generate the income needed to meet lifetime maintenance requirements?
           h) Enforceability issues. Whether there are any specific factors which make it particularly easy or difficult to enforce an award in the target jurisdiction.
           i) Particular issues. Each case raises specific matters that must be analyzed, depending on such matters as whether there are:
                    1)  Pre-marital assets. Some jurisdictions allow and even encourage the courts to divide even a party's premarital assets (England). Others do not (New York).
                    2)  Trust assets. Jurisdictions vary considerably in their treatment of assets that a spouse has placed in trust. Some jurisdictions will "pierce" the trust (Colorado). Others will not (Japan).
                    3)  Inherited assets. Many jurisdictions do not divide assets that a spouse has received as an inheritance. Others do (Netherlands).
                    4)  Gifted assets. Many jurisdictions do not divide assets that a spouse has received as a gift.
                    5)  A pre-nuptial agreement. Some jurisdictions do not recognize international prenuptial agreements as binding. Jurisdictions vary significantly in the bases upon which prenuptial agreements may be invalidated or restricted, in the nature of the burden of proof concerning validity and on other critical factors concerning their applicability.
          6) "Bad conduct." Some jurisdictions punish adultery, criminally and by a financial award to the "innocent spouse" (Korea). Others allow a divorce for mere incompatibility (California).
j. The rules concerning children. Jurisdictions around the world vary enormously in their treatment of children upon a divorce. The issues include: sole custody versus joint custody; minimal visitation rights to a noncustodial parent versus liberal visitation rights; male-dominated approaches versus female; national biases versus impartiality; religious biases versus impartiality; freedom to relocate versus limited relocation; and freedom to take children overseas versus inability to do so.
The Law Office of Jeremy D. Morley,, is extremely experienced in handling international family law matters concerning Thailand, always with local counsel in Thailand as appropriate. We have represented very many clients, both Thai and non-Thai, in international divorce and child custody cases that concern Thailand.