Love is a many-splendoured thing, as the old song goes. But like any other splendoured thing, once the government gets involved it becomes complicated.
Laws governing sexual activity are covered in the Penal Code while marriage and family matters are covered in the Civil and Commercial Code. The age of sexual consent here is 15, while the age of consent for marriage is 17. Marriage for persons under 17-years-old requires consent of the family court. Marriage for persons between the ages of 17-19 requires parental consent. Adulthood starts at 20 years of age.
As in most Western countries, once married, a minor is deemed to be legally emancipated. A unique aspect of Thai law is that if a sexual encounter occurs with a teen (aged 15-18) outside the home it requires parental consent. There seems to be a legal presumption that if the sexual activity occurs in the minor’s home, the parents have consented.
Regardless of pomp and ceremony, marriage may only be consummated by both parties registering their intention at their local amphoe office. Prenuptial agreements must be witnessed by at least two other people and registered together with the marriage. The agreement then becomes part and parcel of the marriage registration. An ante-nuptial agreement made after the marriage registration must be approved by a court, which may then instruct the district office to record the agreement.
While Thailand is a civil law country it has adopted the common law notion of community property (sin somros) and prohibition against polygamy. Property owned by one spouse prior to marriage or bequeathed to a particular spouse becomes the separate property (sin suan tua) of that spouse. When there is doubt as to whether a particular item of property is community or separate, the legal presumption is that it is community property.
As a matter of law, sin suan tua consists of property owned by either spouse before the marriage, personal property such as clothing and jewellery, tools used by a particular spouse for his/her business or trade, and property acquired by an individual spouse by a will or as a gift. The fruits of separate property are community property.
For example: “Spouse A” owns a farm as separate property. Each year the farm generates one million baht in profit. The million baht is sin somros while the underlying farm remains sin suan tua.
If a couple wishes to terminate their marriage, and they are both in agreement as to the termination and the distribution of community assets, they may file a termination of marriage request at their district office.
If there is no agreement as to terminating the marriage, care and raising of common children, or the division of assets, the matter must be filed in a court, which will then decide. Unless there is a compelling reason to the contrary, custody is generally given to the mother, but the father will be given visitation rights, as long as their is no danger to the children.
By way of example, we had a case where a Thai wife had a European husband. The couple had a daughter. Shortly after the daughter was born, the father was arrested in Thailand on an Interpol warrant for a bank robbery he had committed in his home country. He was extradited and sentenced to six years in prison. His wife filed for and was granted a divorce. She then met and married a new man, who raised the daughter as his own. They then filed to prevent the biological father from visitation, claiming that as a bank robber, he was subject to violent behaviour and could be a danger to the child.
The court ruled that even though the father had used a gun to rob a bank, he was not necessarily a danger to his daughter. In the judge’s opinion, had the father had a drug conviction, the decision might have been different.
Grounds for divorce include (but are not limited to):
1) One of the spouses holding another person out to be his or her spouse.
2) One spouse committing an immoral act (regardless of the legality of the act) with such act causing shame upon the non-acting spouse; ill-feeling towards the non-acting spouse in the community; or injury or trouble to the non-acting spouse.
3) One spouse physically or mentally abusing the other spouse or ascendants of that spouse.
4) Either spouse wilfully deserting the other for a period longer than one year.
5) Either spouse being imprisoned for longer than one year, provided the other spouse didn’t participate in or have prior knowledge of the act which led to the incarceration of the acting spouse.
6) The spouses having wilfully lived separately for a period of three years due to an inability to cohabit peacefully or by an order of the court.
7) One spouse having gone missing for a period of three years.
8) One spouse contracting an incurable and chronic disease.
9) Bad behaviour or a lack of support on the part of either spouse.
10) Either spouse being physically and permanently unable to have sexual intercourse.
11) Adultery, provided the non-acting spouse has not forgiven the adulterating spouse or consented to the adulterous act(s).
12) One spouse becoming insane. (My wife constantly threatens me with this one!)
The court, if required, will issue an order for divorce, a division of sin somros, and spousal and child support. Spousal support discontinues upon the remarriage of the supported spouse and child support when the supported child turns 20 years of age. Note that the grounds for divorce based on the above are extinguished if the non-acting party has not filed within one year from the date that he or she knew of (or should have known of) the act which gave rise to the action for divorce.
Once divorced, a woman must wait 310 days before she can marry without court consent. While this law does not apply to men, we found no Constitutional Court cases challenging the law for being sexual discrimination.
If you have any issues you would like Expat Counsel to look at, contact us at info@legalthai.com.
