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Posts Tagged ‘prenuptial agreement Thailand’

20th July 2010

A Thai prenuptial agreement (also referred to as a Thai prenup) can provide a great deal of protection for individuals should a marital union be dissolved. A premarital agreement can also be very beneficial because it can provide certainty and transparency for the parties to a marriage. That said, a prenuptial agreement (Thai or otherwise) should be drafted in such a way that it provides protection for one’s property or real estate holdings as well as corporate assets and financial instruments. In Thailand, ensuring that a prenuptial agreement comports with all applicable formalities can be difficult which is why it is always prudent to consult with a Thai lawyer regarding such matters. For those foreign nationals with assets outside of the Kingdom of Thailand it may also be wise to consult with an attorney in the jurisdiction where one resides or maintains property in order to take all reasonable measures to ensure the integrity of one’s estate.

In Thailand, a prenuptial agreement must be registered at the time of the marriage in order for it to be enforceable by Thai courts. In a way, it may be better to think of prenuptial agreements as simply “nuptial  agreements” as the agreement does not exist until the simultaneous registration of that document and the marriage. Many Americans in Thailand opt to register a prenuptial agreement prior to the marriage that will act as a basis for a US Marriage Visa.

Corporate Assets

For those with corporate assets in the form of stocks, bonds, mutual funds, or options it is always prudent to seek information regarding a prenuptial agreement as such an agreement could protect one’s corporate assets in the event of a marital dissolution. In Thailand, those who have an ownership interest in a Thai company are wise to research prenuptial agreements prior to marriage in order try to maintain one’s holding in the event of a divorce.

Thai Property

Although foreign nationals cannot own land in Thailand, there are other property interests that one may have pursuant to Thai law, these include, but are not limited to: Thai Condo ownership, Thai usufructs, Thai 30 year leases, etc. Those with Thai real estate should consider a Thai prenup prior to marriage registration.

Marriage is a major event in one’s life. It can also have a significant impact upon the legal posture of one’s assets and interests. Therefore, those with an eye towards marriage should consult with a family lawyer within one’s local jurisdiction prior to marriage registration in order to help ensure that one’s assets are properly protected.

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28th March 2010

For many Thai-American couples a prenuptial agreement is an effective method of ensuring that bot parties understand the rights, obligations, and responsibilities that marriage entails. The US Embassy in Bangkok, Thailand issues a large number of visas to the fiancees and spouses of American Citizens. As this is the case, one of the ancillary issues regarding US Immigration involves prenuptial agreements as many couples opt to have a Thai Prenuptial Agreement signed prior to a marriage which is used as a basis for a K3 Visa or a CR1 Visa or they opt to have a prenuptial agreement drafted prior to a Thai fiancee’s departure to the USA on a US fiance visa (also known as a K1 visa). That being said, having a prenuptial agreement properly drafted is extremely important as failure to properly draft such an important document could lead to unforeseen problems down the road.

In previous posting on this blog, this author has discussed the importance of having a licensed US attorney act as a representative in US Immigration matters as “visa companies,” “visa agents” and fly by night operations claiming to be either lawyers, attorneys, or both cannot represent clients before the United States Citizenship and Immigration Service (USCIS). With regard to a Thai prenup, one should retain a licensed American attorney to draft a prenuptial agreement if for not other reason than the fact that they are trained in the working of United States law as well as the common law system in general. Unfortunately, those falsely claiming legal credentials are often drafting documents that are insufficient to ensure the security of one’s assets.

The obvious question that many people in Thailand have is: how can I be sure that the person drafting my prenuptial agreement is a lawyer? As with United States Immigration matters, the best way to verify an individual’s credentials is to ask for either a State Supreme Court License, a State Bar Association Membership Card, or a Federal license to practice law in a US Federal jurisdiction. After receiving the individual’s credentials, it may be necessary to check with the Supreme Court or Bar Association to be certain that the individual is an attorney in that jurisdiction.

Prenuptial Agreements are very important documents and they should be carefully drafted by someone with legal acumen. Entrusting something so important to those without credentials is a risky endeavor that will likely not be recognized until long after correspondence with the drafter has terminated.

For further information please see: Prenuptial Agreement Thailand.

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8th November 2009

In many cases, those thinking of drafting a Thai prenuptial agreement also ponder the related issue of a Last Will and Testament in Thailand. Although both of these instruments can have an impact upon the distribution of Thai property they should not be viewed as completely complimentary devices as they serve different purposes and the drafting of these documents requires adherence to different sets of rules regarding legal formalities.

A Thai prenuptial agreement is an instrument used for the purpose of pre-designating a property distribution should a marital relationship dissolve. If the underlying marriage is registered at an Amphur office (Civil Registrar’s office) in Thailand, then the Thai prenuptial agreement must be simultaneously registered with the marriage. Failure to simultaneously register the Thai prenup could, and may very likely, result in a Thai court subsequently refusing to take notice of the prenuptial agreement when deciding how the marital estate should be divided.

A Thai will is a testamentary instrument that is used to divide the estate of a Thai or one who has died in Thailand. When drafting a will in Thailand, or in any jurisdiction, one must adhere to certain legal formalities in order to ensure that a court will enforce the provisions of the will itself. When a court divides the estate of the deceased, this process is known as probate and a probate court could throw out an improperly drafted will. This is why retaining the advice of a Thai lawyer may be advisable when drafting a new Thai will.

So-called “spouse election,” statutes should be mentioned when discussing Thai prenuptial agreements and wills for United States Citizens looking to marry Thai nationals. A “spouse election,” statute is a type of legislation that exists in many jurisdictions throughout the United States. Such legislation is designed to curb disinheritance of surviving spouses in wills or other testamentary devices. The result of “spouse election,” statutes in the USA is that the spouse of a deceased person can usually be confident that they will inherit at least 1/3 or 1/2 of the net probate estate (the actual percentage depends upon the state). Such rules are important to note for those drafting a prenuptial agreement because a prenuptial agreement should not be drafted in such a way that its provisions contravene the “spouse election” statute in the state of the US Citizen’s residence. Therefore, it may be wise to consider Wills and Prenuptial agreements as wholly separate instruments and thereby keep each of these instruments free of provisions that stray into the bailiwick of the other.

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30th September 2009

Divorce in Thailand

Posted by : admin

Few people wish to discuss what will happen should a marriage breakdown, but unfortunately divorce is an issue that many people confront at least once in their lifetime. With this in mind, those living in Thailand researching the issue may be surprised to learn that divorce in Thailand can be quite different when compared against divorce procedures in common law countries.

One of the major differences between divorce procedure in Thailand and divorce procedure in the United States of America is the presence of an Amphur office. The Amphur office is the civil registrar for vital information pertaining to the citizens and permanent residents of Thailand as well as foreign visitors in the Kingdom. Amphur officers are empowered with the authority to execute legally binding marriages, change names, record, births, record divorces, as well as other functions. In Thailand marriage registration usually involves a trip to the Amphur’s office to have the marriage legalized. In many divorce cases in Thailand, the converse is true for the dissolution of a marriage. Provided that there are no major disagreements between the parties, a sort of “no contest” divorce can be easily granted at the local Amphur office. However,  should the parties have any type of disagreement, then a protracted divorce proceeding must occur in the Thai court system.

An immediate issue surrounding the issuance of an Amphur divorce is: will the United States recognize the divorce as binding? Quite simply: Yes. A divorce registered at an Amphur office is considered legally binding for US purposes. This is particularly important in K1 visa cases, as a common question from prospective US Citizen petitioners is: “what do they mean my Thai fiancee must be legally free to marry?” This means that they need to be single, divorced,  or their prior spouse must be deceased. The United States government considers a Thai Divorce, granted in Thailand, valid.

Another issue ancillary to Thai divorce is that of a prenuptial agreement. Under Thai law, a prenuptial agreement must be recorded contemporaneously along with the recording of the Thai marriage. Once properly recorded, the prenuptial agreement will be the touchstone for dividing marital assets in Thailand.

In cases where a Thai divorce cannot be executed directly through the Amphur office it may be necessary to file the divorce action in the Thai courts and upon final judgment of dissolution, the couple must present the judgment to the Amphur for registration.

Another issue to think of when contemplating a Thai divorce is the issue of how one’s property will be divided post -divorce pursuant to a Thai will. For the sake of avoiding prolonged probate, it may be wise to change ones Thai will in tandem with the divorce registration.

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17th June 2009

Information swirling around the internet regarding prenuptial agreements can be less than helpful or downright dangerous. One thing to bear in mind is the fact that writing one’s own prenuptial agreement is generally not a wise idea because an attorney understands the legal implications of certain language used in the agreement. Someone without legal training might be unaware of the consequences involved when using or omitting certain key phrases.

There is a rather common misconception that prenuptial agreements will be held inviolate by the courts. This is frankly not true. There are situations where a court will throw out a prenuptial agreement. For this reason, it may be doubly important that professional legal counsel be retained in order to forestall a judicial nullification of an otherwise duly formalized prenuptial agreement.

A misconception of less prevalence in the United States, but perhaps more prevalent in the Kingdom of Thailand is the idea that prenuptial agreements will be automatically thrown out of court. This belief is especially widespread among the British expatriate community in Thailand. Although it is true that British Courts take a dim view regarding prenuptial agreements, there are some instances of the court taking them into account when dividing marital property, but as a rule, they are not generally recognized. That being said, Thai courts will recognize a duly formalized prenuptial agreement and for this reason it is probably prudent for the expat with assets that he wishes to protect in Thailand to register a prenuptial agreement at the time of the Thailand Marriage Registration.

Some people believe that prenuptial agreements can make stipulations regarding child custody. It is an almost universal fact that prenuptial agreements that make provisions for child custody, particularly with regard to as-yet unborn children, will be thrown out of court, because it is the Court’s duty to make decisions regarding the child based upon the best interests of that child.

In most jurisdictions in the United States provisions can be made that will limit spousal maintenance should their be a dissolution. In any case involving the waiver of maintenance rights, it is prudent to have an independent attorney explain the agreement to the non-drafting fiancee. This forestalls the agreement being thrown out because the fiancee was ignorant of the agreements provisions at the time she signed it. Further it may be wise, depending upon the situation, to have the prenuptial agreement signed ad then let an interval of time pass before Thai marriage registration.

(Please be on notice: this post is not a satisfactory substitute for competent legal advice from an attorney. No attorney-client relationship is created between author and reader.)

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