Law, Life and Society: Benefits of premarital agreements

PHUKET: In Thailand, it is not unusual to see established men marrying younger Thai women. There are also instances where couples are in their second relationship and both bring their own assets into a marriage.

In these circumstances, it may be prudent to sign a premarital agreement.

A premarital agreement outlines the division of the property, debts, and spousal maintenance in the event of a divorce.

While setting the division of financial assets is not romantic, it does help to preserve the couple’s expectations during the marriage.

In Thailand, premarital agreements are allowed, but they have to be signed and concluded prior to the marriage. The agreements also cannot be contrary to “public order or good morals”.

While premarital agreements are generally concerned with the couple’s assets, there have been instances where bad moral behavior such as adultery has resulted in a dilution of assets for the offending party.

Unlike most western countries where a premarital agreement is private, Thai courts will only recognize a premarital agreement that has been filed at the local government district office where the marriage will be registered.

The premarital agreement is not valid if filed after the marriage has occurred. The premarital agreement will also not be valid in Thailand if it is drafted and signed, then kept privately by both parties.

A properly prepared and filed premarital agreement is legally binding. Neither of the concerned parties can file an amendment to a premarital agreement with the local government district officer after it has been agreed upon.

Changes to the premarital agreement require a petition to modify it at a court. It cannot be altered, modified, or canceled without the authorization of a court.

If the court alters or cancels the premarital agreement, the court will notify the local government district where the agreement and the marriage were filed.

Post-marital agreements between a husband and wife are much weaker than a premarital agreement. Any agreements between a husband and wife during the marriage can be made void at any time by either party during the marriage, or within one year after dissolution of the marriage, as long as an innocent third party is not affected.

For a premarital agreement to be recognized, the agreement must satisfy certain requirements. The premarital agreement must be in writing and both parties must understand the contents of the agreement.

For practical purposes, premarital agreements should be written in the language of both parties. However, it is highly recommended that the agreement be submitted in Thai. Generally, if there is a conflict between an agreement written in two languages, the Thai-language version will take precedence.

All parties should be given enough time to read the premarital agreement and should not be pressured into signing it.

It is best practice for each party to review the agreement with their own attorney prior to signing it. An attorney can explain the legal repercussions of each clause to ensure that parties understand the agreement.

Two independent witnesses have to be present at the signing of the agreement to verify that it was not signed under duress.

A prenuptial agreement is generally not needed for a young couple who are just getting started in their life with minimal assets.

However, for individuals who are entering their second marriage, or are entering a marriage with substantial assets, a premarital agreement can remove or reduce the financial concerns of getting married.

While love and attraction is a strong inducement for couples to be together, marriage is a legal contract that binds two people financially and legally under the law.

It is prudent to enter into a marriage with an open knowledge of the other person’s finances.

Robert R Virasin is a licensed US Attorney and the managing director of Virasin & Partners. Yutthachai Sangsirisap is a licensed Thai Attorney at Virasin & Partners. They can be reached at info@virasin.com or at www.virasin.com.