Needless to say, divorce can be one of the most emotionally draining, costly, and stress-inducing experiences one can go through. While it is certainly a safe assumption that no one enters into marriage with the intent or hope of divorce, the reality is that no small number of marriages ends up at this point, even after best efforts to maintain the union. In a best-case scenario, both parties realize that the relationship is unsalvageable, and come to amicable solutions to property division, child custody and support, and any other issues. Unfortunately, far too many divorce cases become contentious, even to the point of extreme hostility or violence. We sincerely hope that your marriage has not reached this undesirable situation. If you are considering divorce, perhaps this overview can help you decide the best way to go forward for yourself.
When and why does a divorce need to be sought in court?
In the case of both spouses agreeing to end the marriage, all it takes is a simple registration at the local district office (Khet in Bangkok; Amphoe in the provinces) where the original marriage registration took place. Property division and child custody as agreed upon by the parties is recorded on the divorce certificate, or the pre-prepared divorce settlement agreement is attached to the certificate. Two witnesses to the consensual nature of the divorce are required to attend and sign documents. The process is completed within one day.
However, when spouse or the other refuses to legally end the marriage, or the parties cannot agree on child custody and/or property division, it is necessary to take the matter to court to come to a legally enforceable conclusion. Particularly in abusive relationships, the spouse at fault usually tries to prevent the divorce or impose unreasonable demands and conditions for divorce. The abused spouse can easily be coerced into an unfair divorce agreement without the court’s protection and oversight. The whole process normally takes around 6 months but can take up to a year.
Establishing grounds
In a non-mutual divorce, the spouse seeking a divorce must petition the court to allow one, and such a lawsuit must be based on grounds applicable under Thai law. Article 1516 of the Civil and Commercial Code stipulates the grounds for divorce as follows:
(1) One spouse publicly claiming another person as his/her spouse, has kept or is a mistress or lover, or has habitually committed adultery;
(2) One spouse is guilty of misconduct, causing great shame, insult or damage to the other (note that this includes but is not limited to criminal activity);
(3) One spouse causing serious physical or emotional damage the other, or has seriously insulted the other spouse or his or her ascendants or ancestors;
(4) Deliberate desertion of a spouse for more than one year;
(5) One spouse being sentenced by a final judgment of the Court and having been imprisoned for more than one year, without any participation, consent or knowledge of crime by the other spouse;
(6) Voluntarily living separately for more than three years, or living separately for more than three years by the order of the Court;
(7) One spouse being adjudged by the court as a disappeared person or has been a missing person for more than 3 years;
(8) One spouse failing to give proper maintenance and support to the other, or has engaged in acts severely detrimental to the relationship of husband and wife;
(9) One spouse being insane for more than three years continuously;
(10) One spouse breaking a bond of good behavior or a written promise to refrain from doing something;
(11) One spouse suffering from a serious communicable and dangerous disease of an incurable nature;
(12) One spouse has a physical condition so as to be permanently unable to engage in sexual activity.
Filing suit
Court jurisdiction is determined by the area where the marriage originally took place, the legal residence of the defendant (the spouse who is being sued), or where the marital properties under dispute are located. It may also be filed where the grounds of the case occurred. Your lawyer can file the suit on your behalf and you do not have to be physically present for this step.
If the divorce lawsuit is also claiming marital property, a court fee is calculated at 2% of the total amount of the claim. However, the court fee is capped at 200,000 THB.
Summons are served to the defendant, who is given up to 30 days to file a response and counter-claim.
Court processes
After the lawsuit papers are filed, a pre-trial court date is set. This is an opportunity for both parties to speak to the judge in private, and speak together with a judge or court mediator present. Depending on the outcome of discussions, another pre-trial hearing may be set, or trial dates may be set. Judges generally do everything in their ability to help the parties reach a settlement, and going to trial is a last resort.
If custody of minor children involved, both parents and children of school age are scheduled to make a mandatory interview before the Juvenile Observation and Protection Center. This is normally scheduled within 15 days from filing suit. Through the interview and follow-up home studies, the officials investigate each party’s lifestyle, income, and other aspects of the situation, and compile a background report for the court. They may also make a recommendation to the court about custody.
When the case goes to trial, each party or their lawyer/s take turns presenting their own evidence and cross-examining the other party in the same manner as a regular trial. At any point before the verdict, the parties may reach a mutual agreement. This agreement is drafted and signed in court, under the guidance of the judges and lawyers. The judge then issues a ruling based on the agreement.
Unless proven otherwise, assets and property acquired during marriage are considered marital assets, meaning that both spouses have equal ownership rights on that particular property. The court will consider the presented facts of the case and divide the property according to law. This can get quite tricky in Thai-foreign marriages, because of the restrictions on foreign ownership of immovable property.
Civil registration
Once the court has ruled to allow the divorce, the final step to finalize the divorce is to register the divorce at the Khet or Amphoe. A certified copy of the court order is required, and in some instances, a certificate of finalization from the court, which can be issued after 30 from the reading of the verdict if no appeal is made. Most rulings stipulate that the court order may be used in lieu of the presence and consent of the other party. This means that only one party would have to show up to handle the divorce paperwork. The local registrar examines the documents and issues a certificate of divorce. From that point on, the parties no longer have any legal responsibilities towards each other in regards to a marriage relationship, and both are free to re-marry.
Full text of Article 1516
Article 1516 Grounds for divorce are as follows:
(1) If the husband or wife has provided support to or honored another person as his/her spouse, has kept or is a mistress or lover, has habitually committed adultery, the other spouse may enter a claim for divorce;
(2) If one spouse is guilty of misconduct, notwithstanding whether such misconduct is a criminal offence or not, causing the other:
(a) To be severely shamed;
(b) To be insulted or hated or account of continuance of being husband or wife of the spouse having committed the misconduct; or
(c) To suffer excessive damage or inconvenience. Taking the condition, position and cohabitation as husband and wife into consideration, the other spouse may enter a claim for divorce;
(3) If one spouse has caused serious harm or torture to the body or mind of the other, or has seriously insulted the other or his or her ascendants or ancestors, if the matter is grievous, the other spouse may enter a claim for divorce;
(4) If one spouse has deliberately deserted the other for more than one year, the other spouse may enter a claim for divorce;
(4/1) If one spouse is sentenced by a final judgment of the Court and has been imprisoned for more than one year in the offence committed without any participation, consent or knowledge of the other, and the cohabitation as husband and wife will cause the other party suffer excessive damage or inconvenience, the other spouse may enter a claim for divorce;
(4/2) If the husband and wife voluntarily live separately because of being unable to cohabit peacefully for more than three years, or live separately for more than three years by the order of the Court, either spouse may enter a claim for divorce;
(5) If one spouse has been adjudged by the court as a disappeared person, or has left his/her domicile or residence for more than three years and it is unknown whether he or she is living or dead, the other spouse may enter a claim for divorce;
(6) If one spouse has failed to give proper maintenance and support to the other, or has committed acts seriously adverse to the relationship of husband and wife to such an extent that the other has suffered excessive inconvenience, taking the condition, position and cohabitation as husband and wife into consideration, the other spouse may enter a claim for divorce;
(7) If one spouse has been insane for more than three years continuously and such insanity is unlikely to be curable to the extent that the continuance of marriage cannot be expected, the other spouse may enter a claim for divorce;
(8) If one spouse has broken a bond of good behavior or a written promise to refrain from doing something, the other spouse may enter a claim for divorce;
(9) If one spouse is suffering from a serious communicable and dangerous disease which may cause danger to the other, and said disease is of an incurable nature, the other spouse may file a claim for divorce;
(10) If one spouse has a physical condition so as to be permanently unable to engage in sexual activity, the other spouse may enter a claim for divorce.
