Our law firm in Thailand Herrera and Partners H&P have handled a significant number of lawsuits in Family regarding divorce and custody of children. Our lawyers in Bangkok specialized in Thai Family Law have prepared a summary of the regulation and key legal aspects to consider in cases of divorce and custody in Thailand.
Under the Civil and Commercial Code, Section 1514, divorce in Thailand can be carried out in two ways:
- Divorce by mutual consent; and
- Divorce by judgment of the court.
A divorce by mutual consent must be made in good faith and with the full consent of both spouses. Both spouses may jointly register their divorce at the district office. Such a divorce can be made even if there are no legal grounds for divorce as prescribed by law.
In practical, and based on our experience, the divorce by mutual consent can be a complex issue as there is no judge or court ruling in this case so many foreign countries are reluctant to accept the exequatur of this divorce and its legal effects as there is no court ruling. However, the lawyers in Thailand can design a strategy based on international law to register the divorce by mutual consent without court ruling in a foreign country.
Divorce by court judgment applies where both spouses, or one of them, do not voluntarily agree to divorce. Either spouse may initiate divorce proceedings in court based on legal grounds for divorce. The grounds must be in accordance with Section 1516 of the Civil and Commercial Code. Examples include:
– One spouse has given maintenance to or honored another person as a spouse, committed adultery, habitually engaged in sexual intercourse with another person, or committed or accepted acts from another person to satisfy sexual desires habitually.
– One spouse has inflicted physical or mental harm, seriously insulted, or gravely humiliated the other spouse or the other spouse’s ascendants.
– One spouse has willfully deserted the other for more than one year.
– The spouses have voluntarily lived separately for more than three years because they are unable to live together in peace as spouses, or have lived separately under a court order for more than three years.
– One spouse has failed to provide proper maintenance and support to the other, or has committed serious misconduct against the marital relationship, causing excessive hardship to the other spouse considering their status and living conditions as spouses, and other grounds as prescribed by law.
Where one spouse is a foreign national, or where the marriage was registered overseas, a divorce action may be instituted before a Thai court if the conduct of either spouse constitutes legally recognized grounds for divorce.
In the case that the marriage was registered abroad, the parties must contact the embassy of the country where the marriage was registered to record the divorce. In addition to initiate a divorce lawsuit in Thailand, our Family Law attorneys should prove that there is no conflict of law between the foreign country law and the Thai Law. Nowadays there are only two countries or jurisdictions in the world that do not allow for civil divorce.
In any divorce, whether by mutual consent or by court judgment, if the spouses have children together, child custody must be considered. In a mutual consent divorce, the spouses must enter into a written agreement specifying which party will exercise child custody over each child. As for child support, the spouses may agree in the divorce agreement on the amount to be paid by one or both spouses.
If there is no agreement or the parties cannot reach an agreement, the court shall determine child custody and child support.
In the case of divorce by court judgment, the court hearing the divorce case shall also determine which party will be granted child custody of each child. In making such determination, if the court finds grounds under Section 1582 of the Code, to remove custody, the court may withdraw custody from a parent and appoint a third person as guardian.
In deciding who shall be granted child custody, the court shall primarily consider the welfare and best interests of the child.
The person granted child custody has rights concerning the child, such as determining the child’s residence or reclaiming the child from any person unlawfully detaining the child. Child custody also includes the management of the child’s property, which must be carried out with due care and in accordance with the law.
However, if the court removes child custody from one spouse, such removal does not release that person from the legal duty to provide maintenance for the minor. Parents remain legally obligated to support and care for their minor child.
If you need lawyer representation in a divorce lawsuit or custody lawsuit in Thailand, please contact our Family law lawyers in Bangkok at info@herrera-partners.com
