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Prenuptial Agreements

Not being an expert in Thai contract law I decided to look at what effect is given to prenuptial agreements in Thailand. I found that generally speaking, so long as the Prenuptial agreement is registered at the time of the marriage the courts in Thailand will uphold the agreement.

PROVIDED IT DOES NOT CONTRAVENE THE LAWS OF THE KINGDOM OF THAILAND. This can be a real problem as things that we may take for granted in the United States could be expressly forbidden under Thai law. I will not go into specifics here, but will only go so far as to say that if I were creating a prenuptial agreement I would be rather hesitant to have a Thai judge adjudicating its validity.

KEEPING THE PRENUPTIAL AGREEMENT BALL IN YOUR COURT IN THAILAND

There is one major way of dealing with this issue and that is a choice of law provision. Essentially a choice of law provision is a section in an agreement in which the parties (you and your Thai fiancée or spouse) agree to have the agreement governed by the laws of a certain jurisdiction. Essentially what this means is if you and your Thai fiancée/spouse sign a prenuptial agreement that says the laws of the State of New York USA shall govern this agreement, then no matter where you or your Thai fiancée/spouse decide to go to court the laws of the State of New York shall govern.

Using this example say the two parties get divorced in Kansas and the Pre-nuptial Agreement has a choice of law provision that states that the laws of New York shall govern the agreement. In this case the Kansas Court MUST use the laws of New York just as if they were in New York when deciding how to interpret the prenuptial agreement and divide the assets from the marriage.

HOW DOES THAI LAW INTERPRET CHOICE OF LAW CLAUSES?

According to Thailand’s Conflict of Laws Act of B.E. 2481 (1938):
“The question as to what law is applicable to the essential elements or effects of a contract is determined by the intention of the parties thereto.”

So if you and your Thai fiancée/spouse make a provision in a prenuptial agreement that expressly states what law will govern the agreement, then said law will govern. This means that if you and your Thai fiancée or spouse create and sign a Pre-nuptial Agreement with a Choice of Law provision then that provision will be upheld by the Courts in Thailand. So if you specify that the Law of the State of New York shall govern the agreement then the Thai Courts will NOT USE THAI LAW TO INTERPRETE AND GOVERN THE AGREEMENT, BUT INSTEAD USE THE LAW OF THE STATE OF NEW YORK.

A choice of law provision can be a very advantageous addition to a Prenuptial Agreement because it allows the non-Thai spouse the benefit of having his or her home law govern the Agreement, this can be of great advantage because the non-Thai spouse often cannot read Thai and is unfamiliar with Thailand’s legal system (which is in some ways very different from the legal system in common-law countries).

USING CHOICE OF FORUM PROVISIONS TO CHOOSE WHERE THE THAI PRENUPTIAL AGREEMENT SHALL BE JUDGED.

Also an agreement can stipulate a choice of forum provision (forum being the jurisdiction where the case will be judged) provided the governing law allows for choice of forum provisions. This can be advantageous because it takes the case completely out of Thailand and into the Forum of the Parties choosing.

Using the example above, the parties have chosen New York law to govern and have chosen New York as the Forum state, but the Thai spouse brings a proceeding in Thailand. All the American spouse needs to do is go to court and make a motion to have the case dismissed because the forum is improper based upon the fact that the parties agreed in the in the prenuptial agreement to use New York Law and have the State of New York as the forum for all disputes arising from the agreement. If New York law allows for choice of forum provisions then the case will very likely be dismissed by the Thai court and a new suit will have to be brought in New York.

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