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Contested Vs. Uncontested Divorce and Divorce agreement

Last updated: 26 Sep 2023
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Contested Vs. Uncontested Divorce and Divorce agreement

There are three ways in which a marriage can come to an end: divorce, the passing away of either spouse and court judgment. In the case of divorce, Thai law permits two types of divorce: divorce by mutual consent, also known as an uncontested divorce, and divorce by a court judgment or contested divorce. Upon divorce, former spouses are free to make arrangements regarding their property and familial matters.

UNCONTESTED DIVORCE
In Thailand, couples may divorce by mutual consent or uncontested divorce, which differs from some countries where divorce is usually only granted through court proceedings. An uncontested divorce is possible when a couple has reached a point where they are unable to overcome their difficulties or when they have simply decided that they no longer wish to remain together and have mutually agreed to pursue a divorce.

Uncontested divorce in Thailand is a straightforward process that does not require any court intervention. To obtain this type of divorce, the couples may simply come to a mutual agreement to separate and follow these requirements:

1. The divorce agreement must be in writing.
The law does not prescribe any specific format for the agreement so that it can be written by hand or typed on a computer. However, it must clearly state that both spouses have firmly decided to divorce and must be signed by both parties. The agreement can be made anywhere, including the couple’s home, a lawyer’s office, or a district office.

2. At least two witnesses must sign the agreement.
This is to ensure that the decision to divorce is not made impulsively or under duress, or out of anger. The witnesses do not have to sign at the same time as the couple. If the agreement is only witnessed by one person, it will not be considered a valid divorce agreement and will not be enforceable.

The spouses can also make other arrangements:
• Child custody – the spouses can agree to have their children live with either the father or the mother. Without an agreement, both parents will retain custody of their children.

• Child support – parents are obligated under Thai family law to provide for their children, including their education, healthcare, and general living expenses. The parents can agree to share the responsibility for child support equally or in a specific ratio they agree upon.

• Division of property – the spouses may also allocate their assets according to their preferences. In the event that they cannot reach an agreement on the division of property, each spouse is entitled to an equal share by default.

Once the divorce agreement has been drafted in compliance with the aforementioned rules, it must be presented by the spouses to the district office to legalize their divorce. After the registration process is completed, the former couple will be officially divorced. If one of the spouses refuses to register the divorce despite having a valid divorce agreement, the other spouse can file a plaint with the court to enforce the divorce based on the agreement.

If a couple married under foreign law and mutually agreed to divorce, and their countries of nationalities permit them to divorce by mutual consent, either spouse can file a petition for divorce in a Thai court based on the established divorce agreement. There is no need to provide grounds for divorce.[1]

CONTESTED DIVORCE
If one spouse wants to get divorced, but the other does not agree, then the spouse who wishes to divorce must file for a contested divorce or divorce by court judgment. To do so, the plaintiff can submit their plaint to the Juvenile and Family Court located in the defendant’s residence or where the event occurred that caused the grounds for divorce, such as the place of abuse or where adultery was witnessed.

A. Grounds for divorce
The plaintiff must base their case on one of the 12 grounds for divorce specified by the law:

If one spouse has committed adultery, it is considered a valid ground for divorce. In many cases, the plaintiff only needs to prove that their spouse has consistently seen someone else in a one-on-one setting, and concrete evidence of sexual activity may not be necessary.
 
If one spouse has caused serious injury or trouble to the other or has engaged in misconduct that causes the other spouse to feel ashamed, insulted, or hated, it is considered a valid ground for divorce. Some examples of such misconduct are having a drug or alcohol addiction, gambling addiction, or visiting brothels on a regular basis.
 
One spouse has intentionally inflicted serious physical or emotional harm on the other or has insulted the other or their ascendants.
 
One spouse has intentionally deserted the other for over a year.
 
One spouse has been imprisoned for more than one year for a criminal offense without the involvement of the other spouse, and continuing to live together as husband and wife would cause excessive injury or trouble to the other spouse.
 
The husband and wife have voluntarily or by court order lived separately for more than three years because they are unable to live together peacefully.

One spouse has been declared to have disappeared or has been absent from their residence for more than three years, and their whereabouts are uncertain.
 
One spouse fails to provide adequate support and maintenance to their partner or commits acts seriously adverse to the relationship of husband and wife.
 
One spouse has been suffering from continuous and incurable insanity for more than three years.

One spouse has breached a bond of good behavior they had previously agreed to.
 
One spouse has a contagious and dangerous disease that is incurable and may pose a risk of harm to their partner.
 
One spouse has a physical defect that makes the husband or wife unable to have sexual intercourse.
 

B. Compensation
In a divorce based on adultery, the innocent spouse has the right to seek compensation from both their unfaithful spouse and the lover involved in the affair. The amount of compensation is determined by various factors, such as the plaintiff’s reputation, social status, and financial situation. Furthermore, if the divorce results in the innocent spouse suffering financial hardship, they can also request alimony. According to Thai law, married couples have a responsibility to support each other, and divorce can lead to a loss of such support. Therefore, the spouse who is not at fault can ask for alimony until they are able to remarry and receive support from a new partner.

C. Familial Matters
In a contested divorce case, the court has the authority to order or grant child custody to either spouse based on what the court deems appropriate while considering the child’s happiness and well-being. In cases where one parent is granted custody, the other parent has the right to visit their child. The court may also decide on child support and determine which parent is responsible for paying, or both, or split the costs proportionately. The court considers the financial stability of each parent and the needs of the child when making this decision.

D. Foreign spouses
Foreign spouses who intend to file for divorce in a Thai court must cite one of the grounds for divorce specified above. However, this is also subject to the Act on Conflict of Laws, which states that a Thai court cannot grant a divorce unless it is allowed by the respective law of each spouse’s nationality. Therefore, if the plaintiff is a foreigner, they must demonstrate that the law of their nationality also allows their nationals to petition for divorce.

E. Limitation Period
It is important to note that if a spouse plans to file for divorce based on certain grounds such as adultery, misconduct, or serious harm or torture, they must do so within one year of becoming aware or should have become aware of the reason for the divorce.

F. Effective Date
Once a final judgment is rendered, a divorce by court judgment becomes effective. It is also necessary for the former spouses to register their divorce. In terms of property, marital property is split equally between spouses regardless of who is at fault for the divorce.

Marriage and divorce are complex matters, especially in cases of contested divorce where children are involved. It is recommended to seek the advice of a qualified lawyer.

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