A prenuptial agreement is a written agreement or contract executed between two marrying parties so that should their marriage fail, such document will guide them on the ownership of the assets they have. In other countries, it is also known as “antenuptial agreement” or as “premarital agreement.”
A Thai prenuptial agreement may also include debts and the rights of each party towards their properties.
Prior to the formulation and signing of the document, it is imperative for each party to seek legal advice from a reputable lawyer to ensure their individual rights with respect to their assets are protected and adhered upon. This is especially so if a party into their marriage is a foreigner and the other is Thai. It is also advantageous for the foreign party to enlist the expertise of a lawyer with a favorable degree of familiarity to his or her country of nationality as it may be possible that a provision of the agreement or the whole of it is not admissible based on their laws.
Requirements under Thai laws
The Civil and Commercial Code of Thailand is the fundamental law on prenuptial agreements. Under the said law, a premarital agreement should be:
- Put into writing.
- Each party of the agreement should have their own respective lawyers.
- Be signed with the presence of two witnesses before their marriage is registered.
- Registered at the same district where their marriage is to be registered.
Advantages of a Prenuptial Agreement
A Thai prenuptial agreement spares the couple from lengthy, financially and emotionally draining court proceedings in case they have to determine their rights over certain properties or assets in case of a divorce. This is so because, as previously mentioned, the document will serve as their guide as to which party has issued his or her quitclaim in favor of the other party with regards to their properties.
A fully registered prenuptial agreement also protects a spouse from being made answerable to the debt incurred by the other as this can be specifically stated on the document.
For cases wherein a party of divorce also holds various interests in certain companies, he or she may even execute on which shares go to whom, under what circumstances or at what price if ever these have been determined that payment should be made in order to fulfill a transfer of these.
Drafting process
As a requirement of the Civil and Commercial Code of Thailand, each party must be individually advised by their own respective attorneys. They must also make sure that their lawyers are duly registered in notarial services.
These notarial attorneys can do the following functions:
- Verification of signatures affixed unto the document.
- Certification of identities of each party.
- To administer oaths and affirmation.
- To attest and certify other documents.
- Act as a witness during the signing of the prenuptial agreement.
It is also worthy to note that Thailand is not one of the parties on the Hague Convention on the Legalization of Foreign Documents. This means documents notarized in Thailand may need to be notarized or authenticated at the Embassy of the government in order for it to become admissible.