What you need to know about making a Thai prenup

A prenuptial agreement is a document, a legal contract, that spouses sign before entering a marriage. It's also called an antenuptial or premarital agreement. The opposite is a postnuptial contract, which is a contract made between husband and wife after their marriage.\

Prenuptial agreements provide a financial plan which can be managed through the course of marriage or upon the break-up of the marriage (example: divorce). For people with substantial assets and properties and wish to control the division of the assets upon divorce, this legal document is very useful.

Under Thai law, prenuptial and a postnuptial agreements are 2 types of agreements that can be made in relation of the assets between a husband and a wife.

A Thai prenuptial agreement is an agreement concerning of the assets between a husband and a wife made and governed by Thai law only. Thai Law is limiting prenuptial agreements and you must follow Thai rules in order to have a valid contract. A valid and enforceable Thai prenuptial agreement requires by Law that:

1. It needs to be in writing on the same date of marriage registration, or;
2. It has to be a written agreement signed by both parties.
3. Two witnesses are required.
4. The agreement should be attached with the marriage certificate where the marriage is registered.

A "Buddhist marriage" is not considered a legal marriage in Thailand. A legal marriage is a public act, it is official and registered at a local office. Because a marriage is a public act, the reason why we must register prenuptial agreements in Thailand is to announce to the third parties about the how the relationship of the spouses will be governed.

A Thai prenuptial agreement is concerning only the assets management of a husband and a wife during their marriage. The prenuptial agreement will be considered void, if; for example:

• The prenuptial agreement specified that if a husband goes out with another lady, a wife can file a divorce. This clause is considered void because it is an agreement contrary to public order or good morals according to section 1465 paragraph 2 and section 150 of the Thai Commercial and Civil Code.
• A male who used to pay alimony to his mother every month before marriage. If the prenuptial agreement specified that all his salary will be given to his wife even his mother’s alimony. It is considered that void because it is an agreement contrary to public or good morals.

In addition, if the clause specified that it is governed by foreign law, it is considered void. In contrary, it specified that in case that a husband and a wife live separately, all assets acquired during separation are considered private property. Even though this clause is from the provisions of California State, it shall be valid.

The agreement is unenforceable if specified that the debt of a couple; for example, the education’s debt will be personal debt of a husband or the debt arising from business of both will be personal debt of wife.The altered or cancelled of prenuptial agreement must apply to the court for authorization in order to protect their interests, influences over the other party or force to alter or cancel the prenuptial agreement.In case of a minor wishing to get married and make a prenuptial agreement, a minor must get consent from parents, adoptive parent or legal representative of marriage and make an agreement. (Majority is 20 years-old in Thailand).

If you need a Law firm to draft you a prenuptial agreement, you can ask for a quote by sending an email to Isaan Lawyers.

United Kingdom

Prenuptial agreements are not currently enforceable under UK law. But this might change very soon if you consider some latest decisions of the British Courts.

In some recent cases heard by the Court of Appeal, the judges have been willing to take them into consideration when making a ruling - although they must still take into consideration all the other circumstances which should have a bearing on the ruling. In many cases, it's the division of the family assets that causes the most bitterness and recrimination when couples split up. A prenuptial agreement allows couples to discuss calmly, presumably whilst they are still in love, how they should split their assets if they themselves part.

A case in 2008, NG v KR (Pre-nuptial contract) [2008] EWHC 1532 (Fam), explain Prenuptial agreements under British Law and German Law. And in that case, the prenuptial was considered valid.

Prenuptial agreements under English Courts.

By Jeremy D Morley Attorney-at-Law, International Family Law Office, New York, USA.

Around the world parties have long relied on premarital contracts to increase their level of comfort when getting married. Courts and legislatures outside the UK have responded by enforcing such agreements as long as certain conditions are fulfilled. The UK is now almost alone in resisting this trend. The fundamental question is whether it is sensible for the courts to cling to the position that all pre‑nuptial agreements are in plain contravention of ‘substantially incontestable public policy’. The very fact that the question must be raised shows the extent to which the law on this issue is utterly out of touch with the social changes of the past half-century, with public opinion, with legislative changes allowing civil partnerships, with the governmental recommendation for cohabitation agreements and with the almost universal international acceptance of binding pre‑nuptial agreements.

Pre‑nuptial agreements in historical perspective

Pre‑nuptial agreements can be traced much further back than the common law. The Jewish marriage contract known as the ketubah dates back at least 2,000 years. In France, the customary pre‑nuptial derives from the dowry, first recorded in the ninth century. For most of the history of the common law, premarital agreements regulating the financial rights and obligations of spouses during their marriage were fully enforceable. By the mid-seventeenth century they were sufficiently important as to be included in the Statute of Frauds, 29 Car II, c 3 (1677). Traditionally known as marriage contracts or marriage settlements, they were customary among wealthy families, especially before the Married Women’s Property Acts 1872 and 1882 removed restrictions on a married woman’s right to own property. Since divorce was not permitted in England until 1857 except by special Act of Parliament, marriage contracts were primarily designed to deal with the eventuality of death, not divorce. After 1857 the powers of the courts as to financial matters remained extremely limited. There was no power to order a spouse to transfer a capital sum or property to the other upon divorce.

The current law concerning pre‑nuptial agreements results from a decision as to the status of marriage more than 75 years ago. It was in 1929 that Hyman v Hyman [1929] AC 601 (Hyman) settled the principle that public policy should preclude enforcement of pre‑nuptial agreements that provided for the eventuality of a divorce. The House of Lords declared that such agreements violated public policy in that (a) it would weaken the emotional sanctity of marriage if people entered into it with a view to what should happen if the marriage were to fail and (b) the parties should not be permitted to oust the jurisdiction conferred exclusively upon the courts to dissolve or alter their marital status. In recent years there has been a judicial trend in England towards allowing pre‑nuptial agreements to be afforded greater significance. For example:

• N v N (Foreign Divorce: Financial Relief) [1997] 1 FLR 900 in which Cazalet J observed that although a pre‑nuptial agreement would be binding in Sweden it would be ‘no more than a material consideration for this court under s 25 MCA 1973’.

• S v S (Divorce: Staying Proceedings) [1997] 2 FLR 100 in which Wilson J (as he then was) said: ‘Where other jurisdictions, both in the United States and in the European Community, have been persuaded that there are cases where justice can only be served by confining the parties to their rights under pre‑nuptial agreements, we should be cautious about too categorically asserting the contrary. I can find nothing in s 25 to compel a conclusion, so much at odds with personal freedoms to make arrangements for ourselves, that escape from solemn bargains, carefully struck by informed adults, is readily available here. It all depends. The matter must be left open’.

• N v N (Jurisdiction: Pre-Nuptial Agreement) [1999] 2 FLR 745 in which Wall J (as he then was) confirmed that, as a matter of public policy, pre‑nuptial agreements are not specifically enforceable in English law, but may have evidential weight when the court is exercising its s 25 discretion.

• G v G (Financial Provision: Separation Agreement) [2000] 2 FLR 18 in which the court held that the parties’ actions in varying the terms of a pre‑nuptial agreement and then entering into a separation deed, including the actions of the husband in honouring the pre‑nuptial agreement, led to the conclusion it should be strongly persuasive of the resolution of the case.

• C v C (Divorce: Stay of English Proceedings) [2001] 1 FLR 624 in which Johnson J decided that the existence of a French pre‑nuptial agreement was a significant factor in favour of staying the English proceedings, which he duly did.

• M v M (Pre‑nuptial Agreement) [2002] 1 FLR 654, at 664 in which Connell J said: ‘In my view it would be as unjust to the husband to ignore the existence of the [pre‑nuptial] agreement and its terms as it would be to the wife to hold her strictly to those terms. I do bear the agreement in mind as one of the more relevant circumstances of this case, but the court’s over-riding duty remains to attempt to arrive at a solution which is fair in all the circumstances, applying s 25 of the Act’.

• K v K (Ancillary Relief: Pre‑nuptial Agreement) [2003] 1 FLR 120 in which Rodger Hayward-Smith QC, sitting as a deputy High Court judge, considered the parties’ pre-nuptial agreement both as part of ‘all the circumstances of the case’ and as ‘conduct which it would be inequitable to disregard’. He held the wife to the capital provision of the pre‑nuptial agreement, holding that it met certain requirements, such as that the wife had understood the agreement, that she had been properly advised, that she had been under no pressure to sign and that there had been no unforeseen change of circumstance that would make it unfair to hold her to the agreement. He also held that the agreement should not be permitted to preclude a maintenance order, which he awarded to the wife, except that it should be effective to preclude her from capitalisation under s 25A of the Matrimonial Causes Act 1973.

Nonetheless, there has not yet been a clear judicial endorsement of the binding nature of pre‑nuptial agreements.

Public policy

The ruling in Hyman against binding pre‑nuptial agreements was based exclusively upon a judicial view of the state of public policy in 1929. Society has obviously changed dramatically since that time such that if a court were to consider the matter afresh it would now have no choice but to conclude that (a) the old view that binding pre‑nuptial agreements contravene public policy is unfounded and unacceptable and (b) public policy now requires that pre‑nuptial agreements be enforced as long as they fulfil certain conditions.

When public policy may be employed

It is firmly established that public policy will not preclude enforcement of a contract except in limited and extraordinary situations. Just a few years after Hyman the House of Lords insisted in Fender v St John-Mildmay [1938] AC 1 that public policy must be restricted to those exceptional situations where the harm to the public is genuinely incontrovertible. The Lords stressed that public policy should never be based upon the personal ‘idiosyncratic views’ of a few judges. In a much-quoted statement, Lord Atkin insisted that ‘the doctrine [whereby contracts are declared contrary to public policy] should only be invoked in clear cases in which the harm to the public is substantially uncontestable, and does not depend upon the idiosyncratic inference of a few judicial minds’ (at p 12). Likewise, Lord Thankerton said at p 42: ‘In the first place, there can be little question as to the proper function of the Courts in questions of public policy. Their duty is to expound and not to expand, such policy’.

In Fender the House of Lords decided that a married person’s promise to marry someone else, made after he had obtained a decree nisi but before issuance of a divorce absolute, did not violate public policy and was enforceable. However, Lord Thankerton also insisted that it was clear that: ‘The law will not enforce an immoral promise such as a promise between a man and a woman to live together without being married, or to pay a sum of money or give some other consideration in return for immoral consideration’. While it was ‘substantially uncontestable’ in 1938 that clear ‘harm to the public’ would result from permitting couples who live together without being married to regulate their relationship by contract, that position today is entirely obsolete and completely discredited. The same goes for the now-antiquated view that binding pre‑nuptial agreements run counter to incontrovertibly supported public policy. That opinion is a relic of a bygone age.

Public policy changes with the times

It has been the policy of the courts since time immemorial that the courts must reconsider the appropriateness of their public policy determinations on an ongoing basis. When that principle is not followed the law becomes out of touch and in disrepute. Precedents that invalidate contracts on public policy grounds should be continuously reviewed in light of changing conditions, attitudes and opinions. In 1874 Sir James W Colvile insisted in Evanturel v Evanturel (1874) LR 6 PC 1, at 29 that ‘the determination of what is contrary to the so called “policy of the law” necessarily varies from time to time. Many transactions are upheld now by our own courts which a former generation would have avoided as contrary to the supposed policy of the law’.

The Law Commission supports the view that the courts should not rigidly apply old views about public policy to current issues, even when expressed in the form of precedents that would otherwise need to be followed. The Law Commission has specifically recommended that ‘a legislative provision should make it clear that the courts are to judge whether a contract is contrary to public policy in the light of policy matters of the present day and that contracts which were previously considered to be contrary to public policy may no longer be so and vice versa’ (Law Commission, Consultation Paper No 154, Illegal Transactions: The Effect of Illegality on Contracts and Trusts (1999) at p 98). The Law Commission has cited several cases in which the courts made appropriate updates to public policy notwithstanding older authority to the contrary. They include:

• Bowman and Others v Secular Society Ltd [1917] AC 406, in which, since public opinion about atheism had changed, the court overruled an old precedent that a contract to hire a meeting hall for the purpose of promoting atheism was contrary to public policy.

• Multiservice Bookbinding Ltd and Others v Marden [1979] Ch 84, in which the High Court refused to follow a now outdated opinion of 20 years earlier that index-linked money obligations were contrary to public policy.

• Stephens v Avery [1988] 1 Ch 449, in which the court refused to apply the holding in Glyn v Weston Feature Film Co [1916] 1 Ch 261 that copyright would not be enforced for a film that was deemed sexually immoral because the determination of sexual immorality was outdated. Sir Nicolas Browne-Wilkinson VC stated that ‘In 1915 there was a code of sexual morals accepted by the overwhelming majority of society. A judge could therefore stigmatise certain sexual conduct as offending that moral code. But at the present day no such general code exists … Only in a case where there is still a generally accepted moral code can the court refuse to enforce rights in such a way as to offend that generally accepted code’.

• Armhouse Lee Ltd v Chappell and Another (1996) The Times, August 7, in which the Court of Appeal held that an agreement to advertise telephone sex lines was enforceable notwithstanding alleged immorality. The court criticised the defendant’s ‘brazen cynicism’ in pleading his own immorality in an attempt to avoid paying for work which provided him with enormous profits.

• Heglibiston Establishment v Heyman (1978) 36 P&CR 351, in which the Court of Appeal refused to follow earlier outdated authority that the cohabitation of an unmarried couple constituted the breach of a covenant not to use a property for an ‘immoral purpose’.

• Bevan Ashford v Geoff Yeandle (Contractors) Ltd [1998] 3 WLR 172, at 181, in which Sir Richard Scott VC stated that: ‘notions of public policy change with the passage of time and an arrangement or agreement held in the past to be champertous and consequently unlawful and void need not necessarily be so held today’.

Accordingly, the duty of the courts to review public policy issues anew in light of current opinion and social attitudes applies just as much to the bar against binding pre‑nuptial agreements as to any other issue. Otherwise judges will be in the ludicrous position of declaring that public policy authorises telephone sex contracts, copyright protection for pornographic films and state support for contracts between same‑sex couples, but bars the enforcement of reasonable agreements between married couples freely entered into after independent legal advice and full disclosure of assets.

Changes in the nature of marriage

The world has of course changed dramatically since 1929, particularly in matters concerning personal relationships, religion, status and women’s rights. That the status of marriage 76 years ago was utterly different than it is today is amply corroborated by some basic statistics taken from the website of the Office for National Statistics:

• In 1929 there were only 3,396 divorces throughout all of England and Wales. By 2003 that figure had jumped by more than 4,500% to 153,490.

• In 2002 the divorce rate in the UK was 2.7 per thousand. For the EU as a whole the average was only 1.9 per thousand. The UK rate was 42% higher than the rest of the EU, notwithstanding the fact that most EU countries allow binding pre‑nuptial agreements.

• In 1929 only 4.77% of all births in the UK were outside marriage. By 2004 this had increased by 875% to 42%.

• In 2004 the UK had the fourth highest level of births outside marriage in Europe.

• The number of men in England and Wales who married again after their previous marriage ended in divorce increased by more than 3,000% from just 2,408 in 1929 to 74,397 in 2003.

Obviously, the ban on enforceability of pre‑nuptial agreements did not prevent the changes from being even more extreme. Those EU countries that permit pre‑nuptial agreements have lower rates of divorce and lower rates of extra-marital births, than the UK. The courts have themselves recognised that the institution of marriage is entirely different today than a generation or two ago. It is precisely because of such changes that the courts have dramatically modified the law as to the financial consequences of a divorce. In Miller/McFarlane Lord Nicholls of Birkenhead based his decision on ‘the basic concept of equality permeating a marriage as understood today’. Baroness Hale of Richmond commenced her speech with an analysis of the ways in which in contemporary marriage ‘in real life most couples’ finances become ever-more intertwined and interdependent’.

When Hyman was decided people had little expectation of getting divorced; divorce was generally regarded as sinful. People with assets did not require contractual protection should a divorce occur because the law did not provide for capital transfer upon divorce, and it would have been inappropriate and unnecessary to raise the topic. The status of marriage itself provided all of the necessary terms of the relationship between spouses. The law and the society’s obligations and expectations were clear. The roles that the husband and wife would follow were set. It was a ‘one-size-fits-all’ concept and there was no need to allow the parties to alter it to suit their own requirements.

None of that is true any longer. It would be foolish today for people contemplating marriage to deny that divorce is quite possible. Gender roles are much less important. Couples must choose for themselves the kind of marriage they want to have. Societal pressures are far less important. Increasing numbers of marriages are second or even third marriages. More and more people already have children when they marry, whether from a relationship with their new spouse, a former spouse or a relationship that did not include marriage. The age range of people upon marriage is far wider today than was the case in the 1920s when girls typically got married in their early twenties and boys when they were just a year or two older. Likewise, the assets that people have upon marriage vary much more nowadays than was the case when most newlyweds were first embarking on their careers. The responsibilities that people have upon marriage also vary much more today. Previously newlyweds’ responsibilities were almost exclusively to each other, to be followed by the family that they might build. But today when people marry they often carry with them the responsibility to care for their own existing children and even the burden of responsibility for an ex-spouse.

Furthermore, while the law concerning the financial consequences of a divorce was clear and simple in 1929 that is certainly not the case today. The legislature’s creation of an extremely ambiguous statutory framework has been rendered much more indefinite by extensive judicial law-making in the past several years, which has produced enormous uncertainty. Accordingly, it is certainly not surprising that people want to secure their future with a pre‑nuptial agreement. The revolutionary changes in the concept, role, status and fundamental nature of marriage and the appropriateness of allowing people to plan their own futures help to explain the fact that public opinion surveys show that close to half the population want enforceable pre‑nuptial agreements. The internet bank Smile’s surveys of more than 6,000 people conducted in 2004 show that 46% of the UK population wants pre‑nuptial agreements to become legally binding (www.prnewswire.co.uk/cgi/news/release?id=121959). In light of all this, it is surprising that the judiciary has dug in its heels to prevent pre‑nuptial agreements from working effectively in the UK, and that it has based its reaction on an appeal to considerations of public policy that fly in the face of reality. It is not ‘substantially uncontestable’ that public policy requires that pre‑nuptial agreements not be enforced in order to preserve the sanctity of marriage.

Ousting the jurisdiction of the courts

Hyman was also based on the theory that pre‑nuptial agreements cannot be binding because the courts have the exclusive jurisdiction to dissolve marriages and statute (now the Matrimonial Causes Act 1973) provides the exclusive basis upon which that must be accomplished. In Hyman this argument was presented as a public policy argument. In other cases it is described as a matter of statutory interpretation. Both claims are now erroneous and for the same fundamental reason. The Matrimonial Causes Act 1973 requires the courts ‘to have regard to all the circumstances of the case including the following [eight factors]’. There is ample room within the broad scope of the listed factors to include a consideration of pre‑nuptial agreements (as has been done in many cases). There is also nothing in the statutory language that prevents the courts from considering factors that are not listed, from giving priority to certain factors when present in certain cases or from announcing in advance that that they will apply certain rules to their consideration of the circumstances of the case with necessary safeguards.

The claim that because the courts are supposed to have unfettered control public policy prevents them from enforcing pre‑nuptial agreements is a complete non sequitur. Section 25 is sufficiently broad as to allow the courts an almost unfettered discretion while also declaring whatever rules they deem fit. The fundamental principles already laid down by the House of Lords – for example that equality shall generally prevail, that adultery shall not have financial consequences and that the respective contributions of a party to the marriage shall generally not affect the financial outcome – do not result from statutory interpretation and are fully able to coexist with the eight factors. Likewise there is no statutory reason preventing the courts from holding that pre‑nuptial agreements will be enforced if they are not significantly unreasonable in light of the eight factors in s 25 of the Matrimonial Causes Act 1973.

None of the many common law jurisdictions that have permitted enforceable pre‑nuptial agreements have given the parties the freedom to create unconscionable or seriously unjust agreements. Whether created by judges or by statute in every case the courts have retained the full power to scrutinise pre‑nuptial agreements to prevent injustice. They always have the final word. Fundamentally, the issue is one of paternalism versus individual responsibility. In 1929 it was appropriate to insist that the parties must not vary the terms of their marriage. In 2006 it is no longer appropriate to do so. The legislature is now encouraging same-sex partners to make their own contracts and the government is recommending that opposite-sex partners be encouraged to do so also. Married couples should likewise be permitted, if not encouraged, to enter into their own binding agreements.