A prenuptial agreement is a practical tool for couples that should their marriage fail, the involved parties will have an immediate remedy on how their properties, assets and even debts shall be divided or distributed between them.
Though it is widely recognized in Thailand, it is very important for them to seek the expertise of reputable and accredited-to-practice lawyers. This is to ensure that sections of the contract are fair, in accordance with the laws and their rights as well as applicable in case one party or both parties are not Thai nationals.
Importance of a Prenuptial Agreement
Court proceedings involving the assignment of debts, assets and individual interests are, by nature, lengthy and emotionally draining as one party have to prove his right on a property, for example, over the other. As it involves time and court proceedings, it may also even be financially challenging to some.
If in case of a couple have had executed and duly registered their prenuptial agreement, they may enjoy the following:
- Debt protection – in case of delinquent servicing of debts, Thai law dictates that creditors may claim properties jointly owned by the couple. With a prenuptial agreement, one party can be spared from paying off the debt individually incurred by his spouse.
- Proper property management – according to the applicable law, properties gained during marriage effectively become matrimonial property. With the contract, lengthy re-assignment of these properties may be avoided.
- Assured inheritance – prenuptial agreements help ensure that, in case of a dissolved marriage, the children of the legally separating couple will their own share of the properties otherwise the absence of the contract resorts all properties to be co-managed by both parties or by one party only.
Further under applicable Thai law, in case of death, the surviving party shall gain ownership and control of all assets thus the transfer of ownership to the children rests on the decision of the surviving spouse. However, if a prenuptial agreement is in place, the children may immediately be assigned with ownership as prescribed by the prenuptial agreement.
Prenuptial Agreement Validity
A prenuptial agreement is a legal document. Therefore, it must be executed in accordance with the prescriptions set by law in order for it to be effective, legal and executable.
- Execution of the deed – the involvement of each party’s lawyers are limited to legal and applicability opinions only. Attorneys are there only to guide their clients when executing the agreement. In order for it to be valid, both parties must execute the agreement before a notary public.
- Witnesses – the agreement must be signed before marriage by both parties and shall be witnessed by at least two persons. All these shall be done prior to registration of their marriage as the prenuptial agreement serves as an attachment.
- Must be in writing – as mentioned beforehand, a prenuptial agreement will serve as an attachment when the marriage is registered thus it should be in writing. A verbal agreement between the parties is considered invalid.
A notarial attorney serves a key role in having a valid prenuptial agreement i.e. verification of signatures on the documents, attest documents and certify the identities of the signatories.
As Thailand is not among the signatories of the Hague Convention on the Legalization of Foreign Documents, documents notarized in the country may need to be further notarized and or authenticated at the embassy of the foreign country in order for it to be admissible at the concerned country.