Premarital Agreement: Love, Money, and Marriage
In Thailand, it is not unusual to see established men marrying younger Thai women. There are also instances where couples are in their second relationship and both bring their own assets into a marriage. In these circumstances, it may be prudent to sign a premarital agreement.
A premarital agreement outlines the division of the property, debts, and spousal maintenance in the event of a divorce. While setting the division of financial assets is not romantic, it does help to preserve the couple’s expectations during the marriage.
In Thailand, premarital agreements are allowed but they have to be signed and concluded prior to the marriage. They cannot be contrary to the “public order or good morals”. While premarital agreements are generally concerned with the couple’s property, there have been instances where conditions of bad moral behavior such as adultery can result in a property dilution for the offending party.
Unlike most western countries where a premarital agreement is a private, Thai courts will only recognize a premarital agreement that has been entered into prior to the marriage and filed at the local government district office where the marriage will be registered. The premarital agreement is not valid if filed after the marriage has already occurred. The premarital agreement will also not be valid in
Thailand if it is drafted, signed, and then kept by the parties.
A properly prepared and filed premarital agreement is legally binding. The parties cannot file an amendment to premarital agreement with the local government district officer. Changes to the premarital agreement requires a petition to modify the agreement at a court. It cannot be altered, modified, or canceled without authorization of a court. If the court alters or cancels the premarital agreement, the court will notify the local government district where the agreement and the marriage was filed.
Post-marital agreements between a husband and wife are much weaker than a premarital agreement. Any agreements between a husband and wife during the marriage can be voided at any time by either party during the marriage or within one year after dissolution of the marriage as long as an innocent third party is not affected.
For a premarital agreement to be recognized, the agreement must satisfy certain requirements. The premarital agreement must be in writing and both parties must understand the contents of the agreement. For practical purposes, premarital agreements should be written in the language of both parties. However, it is highly recommended that the agreement be submitted in Thai. Generally, if there is a conflict between an agreement written in two languages, the Thai language version will take precedence.
All parties should be provided enough time to read the premarital agreement and should not be pressured into signing the agreement. It is best practice for each party to review the agreement with their own attorney prior to signing an agreement.
An attorney can explain the legal repercussions of each clause to ensure that parties understand agreement. Two independent witnesses have to be present at the signing of the agreement to verify that the agreement was not signed under duress.
A prenuptial agreement is generally not needed for a young couple who are just getting started in their life with minimal assets. However, for individuals who are entering their second marriage or are entering a marriage with substantial assets, a premarital agreement can remove or reduce the financial concerns of getting married.
While love and attraction is a strong inducement for couples to be together, marriage is a legal contract that binds two people financially and legally under the law. It is prudent to enter a marriage with open knowledge of the other person’s finances.
Mr. Robert R. Virasin is a licensed U.S. Attorney and managing director of Virasin & Partners. Mr. Yutthachai Sangsirisap is a licensed Thai Attorney at Virasin & Partners. They can be reached at firstname.lastname@example.org or at www.virasin.com.
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