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  1. #1
    Moderator Tobias's Avatar
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    PART I

    In the past few months there have been an ever increasing number of discussions in the forum (and in PMs!) on prenuptial agreements and the consequences of divorce. The questions raised most often include ‘where can I get divorced?’ … … ’what are my obligations?’ … … ‘will I lose my house and savings?’… … ‘how are the assets and property split?’ … … ‘how much do I have to pay over if I divorce?’ … … ‘are prenuptial agreements enforceable?’ and ‘what can I do to protect my assets?’. Sadly there are no easy answers!

    In this post I shall attempt to deal (albeit rather briefly) with each of those questions and comment on the general legal provisions relating to divorce both here and in Thailand. I will start with the usual caveat that family law is not my particular area of expertise; you should consider what is written below as a general guide to the law – what it is not intended to be is a substitute for seeking formal legal advice. As I have said many times previously, when it comes to divorce every single case is different (no matter how similar the circumstances appear to be) and each party to a divorce is strongly advised to seek independent legal advice from a specialist family law solicitor.

    Nothing that is written below should be taken or construed as advice or any endorsement as to any particular course of action; it should be considered only as a very brief commentary on the many complicated legal issues regularly raised by members of the forum. I am not for one minute recommending (or even suggesting) that you rely on anything contained in the thread or that a member should follow any particular course of action. Only you, after taking specific legal advice from your own specialist family law solicitor, can decide which course of action to follow (or not) in your own unique set of circumstances.

    Now that very important point is clearly made, let’s get down to the other issues. Before looking at the merits or otherwise of prenuptial agreements or how to ‘protect’ assets owned prior to marriage, we need to set down a legal foundation by looking at other issues, for example where and when to commence divorce proceedings, who is entitled to what in each jurisdiction and the consequences of divorce.

    Divorce
    Once a party to a marriage has decided that the marriage has irretrievably broken down, establishing the ground(s) for divorce is usually the easier part of the process. Once the decision to divorce has been taken, the grounds will often sort themselves out, leaving two very important issues (1) what happens to the children (if any) and (2) the ‘ancillary relief’ i.e. that part of the process that deals with the financial issues between the husband and wife and (as the new Civil Partnership Act is about to become law) between Civil Partners.

    When and Where Can I Divorce?

    In the UK
    Divorce proceedings (or proceedings for the dissolution of a Civil Partnership) cannot be commenced in the UK until the marriage (or the Civil Partnership) has subsisted for at least 12 months. Any proceedings issued in the UK within 12 months of the date of the marriage (or registration of the Civil Partnership) will be struck out and will have no affect. Only a court can grant a divorce or dissolve a Civil Partnership.

    Divorce proceedings may be commenced in England and Wales (notwithstanding the fact that the parties may have married in Thailand) provided that one party to the proceedings is domiciled in England or Wales when the proceedings are begun or was "habitually resident" in England and Wales throughout the period of one year ending on the date on which proceedings are begun. Either party may commence the proceedings.

    In Thailand
    According to Chapter VI of the The Civil and Commercial Code of Thailand, A divorce may be obtained at any time by mutual consent. This is done by both the husband and wife attending together at an Amphur to register their divorce. This is commonly referred to as an ‘administrative divorce’ or a ‘divorce by consent’. The registration of this type of divorce appears to operate in a very similar manner as the registration of the marriage itself. This kind of divorce is recognised by the UK.

    CAUTION: It should be noted that an ‘administrative divorce’ carried out at the Thai Embassy (or consulate) in the UK will not be a valid divorce as far as UK law is concerned – although the divorce will be recognised under Thai law.

    An ‘administrative divorce’, is only available if (Chapter VI of the Code):
    <UL TYPE=SQUARE>[*]the marriage itself took place in Thailand;[*]both the husband and wife ‘consent’ to the divorce by mutual consent;[*]agreement has been reached as to who shall exercise ‘parental power’ over any children;[*]agreement has been reached on the ancillary matters (including the level of maintenance payable for any children and the distribution of the matrimonial assets);[*]both the husband and wife attend ‘together’ at the Amphur to register the divorce; and[*] the divorce is certified by the signatures “of at least 2 witnesses”.[/list]If any of these factors are missing, then divorce proceedings will have to be commenced through the Thai (or British) courts. Divorce proceedings may only be commenced through the court in Thailand if one party to the marriage is resident in Thailand at the time the divorce petition is presented to the court. Subject to the residency requirement, a divorce through the Thai court is possible even if the parties were married in the UK.

    PLEASE NOTE: The information on Thai Law has been gleaned from my own personal research on the subject and is gathered from several sources. As I do not read or understand Thai, I have relied on published English translations of The Civil and Commercial Code which may or may not be accurate in translation. For confirmation/clarification of Thai divorce law and procedure please consult a suitably qualified Thai lawyer.

    ... continued below
    Tobias - โทเบียส

  2. #2
    Moderator Tobias's Avatar
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    PART II

    Grounds for Divorce

    For the purposes of this thread I am working on the presumption that both partners have agreed the relationship has irretrievably broken down and the decision to part company already made – apportionment of blame or who-left-who is irrelevant. On this premise the grounds for divorce (or the grounds for the dissolution of a Civil Partnership) are relatively unimportant and so there is no need for me to address the law in any particular detail here. I shall simply state the legal grounds available under each jurisdiction with minimal commentary.

    Grounds under English Law
    In England there is only one ground for divorce. A divorce can only be obtained if the marriage has “irretrievably broken down”. The breakdown must be ‘proved’ by the petitioner (i.e. the party filing for divorce) by producing evidence of at least one of the 5 “facts” found under Section 1(2) of the Matrimonial Causes Act 1973:-

    (a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

    (b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

    (c) that the Respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

    (d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted;

    (e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition.
    Note the glaring absence of a ‘no-fault’ divorce! With one exception (see below) there is no way of divorcing in England without blame being apportioned for the marriage irretrievably breaking down. The Family Law Act 1996 was enacted to bring in sweeping changes to divorce law including a no-fault divorce – but the all important Part I of that Act has not yet been brought in to law and it appears to have been shelved indefinitely.

    Many couples seek to divorce citing “irreconcilable differences” where neither party wishes (or is quite simply unable to!) blame the other for the marriage breaking down; the fact of the matter being that the couple have simply grown apart over time and find themselves trapped in an unhappy marriage – but (quite wrongly in my view) this is not an available ground for divorce. So, to be able to divorce in England the law requires a party to ‘prove’ two things (1) that the marriage has broken down irretrievably and (2) that one of the parties to the marriage has behaved in such an unreasonable manner that the other finds it intolerable to live with him or her (for the avoidance of doubt, this includes an act of desertion).

    The only possible way of divorcing in England without the finger of blame being pointed is to rely on ‘fact’ (d) in the above list – that is the parties have lived apart for a ‘continuous’ period of at least 2 years immediately before divorce proceedings are commenced and the respondent to the divorce ’consents’ to the divorce being granted.

    Also bear in mind that the ‘facts’ listed above have specific legal definitions which may not necessarily mean the same as one might first think.

    Dissolution of a Civil Partnership: Section 44 of the Civil Partnership Act 2004 provides virtually identical provisions for the dissolution of a Civil Partnership as the ‘facts‘ listed under Section 1(2) of the Matrimonial Causes Act (facts relating to the ‘irretrievable breakdown’ of a marriage). The only exception being 'fact' (a) – because of the legal definition of ‘adultery’, adultery cannot be a factor for a Civil Partner. Should a Civil Partner ‘play away’ then that ‘fact’ would be dealt with under the provisions of Section 44(a) of the Civil Partnership Act – that being the same ‘fact’ as (b) in the above list.

    Grounds under Thai Law
    As discussed above, Thai law provides for a no-fault, no-blame divorce. Undoubtedly an administrative divorce provides the easiest, cheapest and least painful way to divorce. If this is a realistic option, then clearly this should be the preferred route to an amicable resolution. All financial matters and arrangements for any children need to be agreed before filing the divorce as these matters need to be recorded in the divorce papers (Paragraphs 1520 & 1522 of the Code).

    According to Paragraph 1516 of The Civil and Commercial Code of Thailand, there are 10 separate grounds for divorce:-
    (1) the husband has given maintenance to or honored such other woman as his wife, or the wife has committed adultery, the other spouse may enter a claim for divorce;

    (2) one spouse is guilty of misconduct, notwithstanding whether such misconduct is a criminal offence or not, if it causes the other:

    (a) to be seriously ashamed;

    (b) to be insulted of hated [sic] or account of continuance of being husband or wife of the spouse having committed the misconduct; or

    (c) to sustain excessive injury or trouble where the condition, position and cohabitation as husband and wife are taken into consideration; the latter may enter a claim for divorce;

    (3) 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, the latter may enter a claim for divorce;

    (4) one spouse has deserted the other for more than one year, the latter may enter a claim for divorce;

    (a) one spouse had been 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 in the knowledge of the other, and the cohabitation as husband and wife will cause the other party sustain excessive injury or trouble, the latter may enter a claim for divorce;

    (b) 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) one spouse has been adjudged to have disappeared, or as left his or her domicile or residence for more than three years and being uncertain whether he or she is living or dead;

    (6) one spouse has failed to give proper maintenance and support to the other, or committed acts seriously adverse to the relationship of husband and wife to such an extent that the other has been in excessive trouble where the condition, position and cohabitation as husband and wife are taking into consideration, the latter may enter a claim for divorce;

    (7) one spouse has been an insane person for more than three years continuously and such insanity is hardly curable so that the continuance of marriage cannot be expected, the other may enter a claim for divorce;

    (8) one spouse has broken a bond of good behavior executed by him or her, the other spouse may enter a claim for divorce;

    (9) one spouse is suffering from a communicable and dangerous disease which is incurable and may cause injury to the other, the latter may file a claim for divorce;

    (10) one spouse has a physical disadvantage so as to be permanently unable to cohabit as husband and wife, the other may enter a claim for divorce.
    ... to be continued below
    Tobias - โทเบียส

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