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Prenuptial and Postnuptial Agreements

Last updated: 26 Sep 2023
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Prenuptial and Postnuptial Agreements

Thai family law clearly defines what is classified as separate property and what is classified as joint property. Separate property, or legal jargon called ‘Personal Property’, is defined as the following:

1. Property that is owned by either spouse prior to their marriage.
2. Personal effects, clothing, or ornament appropriate for the status of either spouse or tools necessary for their professions
3. Property acquired by either spouse during marriage through inheritance or gift
4. Engagement gift

Assets or income classified as personal property is exclusively owned by one spouse, who has absolute control over them.

The following assets are considered joint property, also referred to as ‘marital property’ or ‘community property’ in legal terms:

1. Property acquired during the marriage
2. Property acquired by either spouse during marriage through a will or gift made in writing if it is declared by such will or document of gift to be marital property
3. Fruits of personal property

If assets are categorized as marital property, they are jointly owned by both spouses, irrespective of who originally acquired them. As a result, the law stipulates that significant transactions relating to marital property or any legal action that could potentially lead to the disposition of such property, e.g., the sale, lease for more than three years, lending, or mortgage of immovable property, require both spouses’ consent.

The property affairs of a legally married couple will be subject to the aforementioned set of rules by default unless they have entered into a prenuptial or postnuptial agreement.

Prenuptial Agreement
A prenuptial agreement allows a husband and wife to choose the most suitable property management for their family or situation. When a prenuptial agreement is in place, the laws governing spousal properties do not apply, and the terms specified in the agreement will prevail. In Thailand, prenuptial agreements are more frequently used by wealthy couples, particularly those who own businesses or assets and couples that include a foreign spouse or have ties to a foreign country.

A prenuptial agreement is limited to property matters only and cannot include issues such as child custody. Furthermore, the agreement must only cover property management during the marriage. For instance, a provision in the agreement stating that upon divorce, all property will belong to one spouse is invalid as it pertains to a situation after the termination of marriage rather than during the marriage.

A prenuptial agreement cannot include any provisions against public order or morals. For instance, a clause stipulating that one spouse must give all assets and income earned to the other spouse is against public morals and is invalid. Additionally, a prenuptial agreement cannot state that the property affairs of the couple will be governed by foreign law.

In a prenuptial agreement, spouses are not allowed to make any agreement regarding debts either. Some types of debt, such as those arising from their children’s education or medical care of family members, are considered shared debts under Thai family law, meaning that both spouses must be jointly responsible for them. A prenuptial clause that specifies that only one spouse shall be responsible for debts arising from their child’s education is considered invalid.

Examples of valid and enforceable prenuptial clauses:

• Any property acquired by a spouse during the marriage will be solely owned by that spouse.
• Transactions involving marital property that are legally required to have both spouses’ consent can be conducted without such consent.
• Income generated by the spouse’s personal property during the marriage will be considered personal property of that spouse.
• Personal property of either spouse will become marital property.

A prenuptial agreement must be made in the forms prescribed by the law. There are two valid methods of making a prenuptial agreement:

1. Notify and record the prenuptial agreement during the marriage registration process, or
2. Make the prenuptial agreement in writing, have it witnessed by two persons, and affix it to the marriage registration.

If the prenuptial agreement is not recorded during the marriage registration process or not affixed to the marriage registration, it can be deemed a postnuptial agreement, which can be revoked at any time.

It is worth noting that once a prenuptial agreement is made and registered, it cannot be altered or revoked without permission from the court. The spouses cannot include a clause in the prenuptial agreement stating that no court permission is required for modifying or revoking, as this would be a clear circumvention of the law, thus rendering the clause invalid.

Postnuptial Agreement
A postnuptial agreement refers to a property agreement that spouses enter during marriage. It can occur when one spouse gifts a property acquired before marriage to the other, which then becomes the personal property of the receiving spouse. Similarly, if a spouse transfers their share of marital property to the other, it becomes the personal property of that spouse. For instance, if a wife leases land to her husband, such an agreement is also considered a postnuptial agreement.

In contrast to a prenuptial agreement, a postnuptial agreement does not need to follow any legal formality. It does not require registration with any authority. However, it must follow requirements prescribed specifically for such type of agreement. For example, a gift agreement of immovable property, personal or marital property, must be registered with an authority.

A postnuptial agreement cannot be used to circumvent legal requirements for certain transactions that require a spouse’s consent. For instance, a postnuptial agreement that allows either spouse to sell a marital property without the other’s consent is not enforceable, as it should have been established in a prenuptial agreement.

The most significant characteristic of a postnuptial agreement is that it can be revoked arbitrarily. This is because the law aims to protect the spouse from being unduly influenced or manipulated by the other spouse, who may have more bargaining power. A postnuptial agreement can be revoked at any time during the marriage or within one year after the marriage ends. For instance, if a spouse gave a piece of land to their partner during the marriage, they may take it back at any time without providing a reason. If a postnuptial agreement is not revoked within a year after the termination of the marriage, it will become permanently binding.

There is no specific legality for avoiding a postnuptial agreement, as it can be done in any form. For example, if the spouse who gave the property keeps verbally asking for a share of the land from the receiving spouse during the marriage, it is considered avoidance of the agreement, and the gift agreement is thus revoked.

Remember that the revocation cannot affect a third party’s rights. This means that revoking the gift agreement is impossible if a spouse who received land under a postnuptial agreement has already sold it to a third party. This is because it would infringe on the third party’s property rights unless they were aware of the revocation when receiving the gift.

Any clause in a postnuptial agreement that waives the right to avoid or revoke the agreement cannot be enforced as it goes against public order or morality. Hence, a postnuptial agreement between the spouses can still be revoked, even if such a clause exists.

Conclusion
In Thailand, family law specifies the classification of separate and joint property. Typically, property obtained after marriage is considered joint or marital property belonging to both spouses. Some legal transactions pertaining to marital property require consent from both spouses. However, couples may draft a prenuptial agreement according to their preferences which may differ from the law. Once married, any agreement made between the couple concerning the property is considered a postnuptial agreement, which can be revoked at any time but no later than one year after the termination of the marriage.

Planning ahead for managing family property is wise, especially in case of a separation or unexpected passing. Consulting with a lawyer about marital agreements can help prevent complications, particularly for foreign spouses, since property laws related to married couples may vary from country to country. This can ensure that the most appropriate agreement is drafted to benefit both Thai and foreign spouses.

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