Marriage and Prenuptial Agreements in Thailand
So, you have met that special lady and in the far off distance over the din of tuk-tuk horns and the one millionth replay of “One Night in Bangkok,” you hear what sounds like wedding bells.
You have never been a member of the militant wing of the Men’s Liberation Army, but from time to time you have been seen on the back benches of some of its “strictly political” gatherings. At the same time, you have never been a Knight in Shining Armor, but for you chivalry has yet to die out. So where does this leave you? You are thinking of marriage, but the horror stories and expat advice are like a tickle at the back of your brain. What are your options and what do you need to do to exercise them?
The NO-NUP Approach
By bringing up this option I am simply standing upon the shoulders of the giant expats before me, I have heard something akin to the proceeding concept on nearly every barstool in Thailand (or anywhere else for that matter):
The best advice for someone with serious reservations about marriage is: DO NOT GET MARRIED UNTIL YOU FEEL READY. My granddaddy once said, “Women’ll always be ready to get married, they’re practically born with bridesmaids dresses picked out.” This statement is no less true in Thailand than back home. Just because she is ready to tie the knot does not mean you need to feel guilty for not being as enthusiastic. There is nothing wrong with having different views on the subject. If you are not ready for marriage, but being somewhat “pushed” toward it, take a step back and examine the situation and if nuptials aren’t for you, then don’t feel guilty. Hopefully, someone that cares as much about you as she claims will wait until you feel comfortable with this type of undertaking, if she’s pushing you into it you should probably ask yourself, “Why?”
The HALF-NUP Approach
There is a nice “half-way” option for those expats who wish to remain in Thailand and wish to get married, but still struggle with the idea of a “full-blown” marriage:
In Thailand a marriage is not legal until it is registered. You can do and say whatever you wish, but the marriage will not be considered valid until such time as it is registered with the proper authorities in Thailand (and no doubt covered in so many stamps that it will be rendered unrecognizable). This concept runs counter to many of the concepts that we may take as given in common law countries. In my own jurisdiction, along with 6 others in the USA, so-called “common law marriage” is still a method of tying the knot. A “common law marriage” occurs when two people hold themselves out to be married for a certain period of time. So, if you and your honey go around telling everyone that you are married and co-habitat for a period of time (the duration depends upon jurisdiction), then if you decide she is not for you she can take you to court and divorce you based upon the fact that you were common law married, even though the two of you never obtained a legal document saying so. This is becoming increasingly rare in the US as comparably few jurisdictions retain it, but it is still a risk.
In Thailand, this is not the case. As a civil law country, the idea of “common law marriage” is anathema. No judge or court in Thailand has the power to say that one is married to someone he did not conduct a valid registered marriage with. This is a boon for the man who wishes to stay in Thailand, but is afraid of marrying his sweetie. Have a ceremony, invite everyone from every village and have 300 monks bless it! Pay the biggest Sin Sot Thailand has ever known, but don’t sign any paper registering the marriage. Ostensibly, in the eyes of the village you and she are married once the ceremony has taken place. She can even change her surname so that it is the same as yours (a common occurrence in Thailand), but in the eyes of Thai law, if you do not register the marriage, then you are not married. An interesting little quirk in Thai penal law states that a spouse shall have immunity from criminal prosecution for theft against the other spouse, another reason why in my opinion it might behoove one to use the HALF-NUP approach; if you were never legally married, then she cannot have immunity based upon being your spouse.
I often advise the HALF-NUP approach for many American clients because they wish to take their fiancée back to the USA, but she wants to get married with her family present. I always say, “have the ceremony, but do not sign anything.” By doing this, the American gets the best of all worlds: the fastest visa (currently the fiancée visa has a faster processing time than either of the American marriage visas and she will still be considered a fiancée if you have not legally wed), a chance to see if his fiancée will enjoy America or if it won’t work out (a Thai in the US on a fiancée visa gets 90 days to get married, this gives the couple time to see if it will work, it sometimes doesn’t and many clients are happy when they find it is not to be, because they never got married and therefore she is not entitled to any of his assets), and the ability to appease both the Thai girl and her family by giving her face without the need to put ones full financial portfolio in jeopardy.
The HALF-NUP Approach is often very beneficial for the expat wishing to appease his girlfriend’s voracious appetite for marriage while keeping his own liability limited.
The PRE-NUP Approach
You’ve decided to officially tie the knot. She’s the one for you and you are going to legally have the act registered. Fine, but take a moment to think about getting a Prenuptial Agreement. A pre-nuptial agreement is valid in Thailand so long as it is registered at the time of the marriage and comports with Thai law. When you have your marriage registered you can also have your prenuptial agreement registered as well. People often ask if it is really necessary and some balk at paying the fees necessary to obtain a quality prenuptial agreement, but my retort is always: you can pay a moderate fee now, or pay her as much as half or more should she decide to divorce you later.
The idea that it may not be necessary to obtain a pre-nuptial agreement is somewhat unconvincing because of the fact that most courts are likely going to award a much larger share of marital assets where a prenuptial agreement doesn’t exist versus a situation where one does.
A serious concern that many Farang expats have about prenuptial agreements in Thailand is the idea that they will have to have the prenuptial agreement adjudicated in a Thai court. This is not the case. One can have a prenuptial agreement in which the parties choose where they will settle the dispute. They can also choose which country’s laws shall apply to the agreement. I wrote in far more detail on this subject here: http://www.thai-visas.com/node/17. Suffice it to say, the prenuptial agreement can be designed to make the possible divorce proceeding and asset allocation as convenient as possible.
This being said, the prenuptial agreement is not a magic bullet. A judge somewhere can interpret it in such a way that it is contrary to your interests. However, hiring an attorney to draft a proper prenuptial agreement can greatly diminish this risk. Also, if a court finds that she did not know what she was signing at the time she signed it, then the agreement can be thrown out. To prevent this one must hire independent counsel, basically a second independent lawyer, to explain to her the details and ramifications of signing the document.
A translated version of the agreement is a necessity as well. It would also be wise to find an attorney that speaks English and Thai or two attorneys, one with expertise in English and one with expertise in Thai, to advise her as independent counsel. Often an attorney will refer you to another attorney that can handle the matter. This sounds expensive, but the fee for the independent counsel is minor compared to the fee paid for the prenuptial agreement itself. Why have it written in the first place if you are not going to ensure that it is airtight?
What is a STREET-NUP?
A STREET-NUP is a name I devised for the prenuptial agreements that I see drafted in Thailand incorrectly. This is often done by a visa service or some other non-legal professional and the agreement is often poorly drafted and would very likely be thrown out of court. A main reason for this is the fact that the one drafting the agreement never informs the recipient that he needs to obtain independent legal counsel for his Thai soon-to-be spouse.
What is a KWIK NUP™?
A KWIK NUP™ is a prenuptial agreement my company drafts. I thought it sounded clever, so I went with it. You can read more about them at http://www.integrity-legal.com/prenuptial_agreements.php.
Thanks to everyone for reading,
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Honestly, I can’t imagine any situation where I would be tempted to get married again, but if I ever do get in that situation I’m sure I’ll be happy to have read this article.
The half-nup sounds like the solution I’d pick off the menu.
Great info, clearly written.
I have to say I am enjoying your contributions to the blog. Whoever had the brainwave to add this particular (legal) section should pat themselves on the back… in addition to the good business info and occasional political commentary that appear it is one more reason to look at TFS2M as more than just a blog for mongers.
Great stuff!
View all comments by Werewolf
Soi Lawyer - How does a “HALF NUP” allow an expat to stay in country without a binding legal marriage document?
View all comments by anon
When you say you’ve found that special lady, I’m assuming that she’s a good Thai girl and not a bar girl. Otherwise my advice would be to go for the NO-NUP option.
Already marrying someone from a different culture is fraught with difficulties but with enough goodwill on both sides those marriages work quite well.
However marriage to a prostitute is almost certainly doomed to failure from the start. Don’t do it!
View all comments by chrispin
Who let the ambulance chaser in ?
I fled the motherland to get away from these sharks….
View all comments by jack dawson
Whew! Glad to hear that common law doesn’t exist here. I was worried that paying a lifetime bar or visiting the same Lolita’s girl daily might get me in trouble wrt common law
Geez, when you mentioned “a spouse shall have immunity from criminal prosecution for theft against the other spouse” that should open some eyes. That seems pretty stupid.
Great info. btw. Perhaps you can cover the worse case scenarios in another post? Maybe that will help guys go into marriage here more cautiously as well. For instance, guy and gal get married and NO-NUP’d, they got divorced… Would be interesting to hear some real horror stories on what guys lost so others can avoid and do the right NUP’ing.
View all comments by pmmp
@ Anon
Sorry I didn’t mean to imply that the Half-Nup option would allow an expat to stay. I meant that for the expat who is staying in Thailand on his own merits, this option is probably the best approach. If you want to stay in Thailand with a Visa based upon the marriage, then (unfortunately for some) a valid legal marriage must be executed. Once you have a valid marriage and can show an income of over 40,000 Thai baht per month, you may obtain a non-immigrant “O” Visa.
@ Werewolf
Thanks a lot for the compliments (on this article and the ones before it). I don’t know who had this idea first, but it seemed like a good thing so we went with it. I’m just hoping some of this info is a help to others out there.
@ Jack Dawson
We ambulance chasers are like cockroaches, even nuclear Armageddon won’t eradicate all of us. LOL
@ Pmmp
Thanks, I will look into giving some info on some of the horror stories.
@ Chrispin
Well said, hopefully this article will cause people to think twice before jumping into something too quickly
Thanks again for reading
View all comments by The Soi Lawyer
Sorry I dont believe your a real lawyer,
I understood everything you said and you were upfront about the fees.
Good article
View all comments by Ron
TSL - is there some kind of charitable fund for lawyers I could contribute to? I’ve always felt that the profession’s famously low remuneration is an insult for all your altruistic efforts to keep us - the common herd - out of jail.
Failing this, could I possibly just make a bank transfer into your personal account every month? I hesitate to ask, as the lawyer’s reluctance to accept cash is deservedly legendary.
For too long, lawyers have struggled heroically in near-poverty in their tireless fight for justice. Enough! It is time your services were appropriately rewarded. I am sure there are many of us out here in blog-land who would be keen to join me in supporting this worthy cause, and I urge them to contribute generously.
View all comments by Pants Elk
I agree with Werewolf that the Soi Lawyer’s contributions are valuable and educational.
View all comments by gavinmac
Dear Mr. Elk,
Please feel free to donate to the Soi lawyer’s honorarium fund (a legal concoction that recently got Samak into a bit of trouble) by buying a copious amount of alcoholic libations at any time he should be in the general vicinity of the Big Mango or Duke of Wellington Bar. Barring this, make all checks payable to…lol
Best Regards,
TSL
View all comments by The Soi Lawyer
agreed PE & Wolf, TSL’s contributions are a genuine gift to us all! TSL I would not want to insult your integrity or ethical precepts with a cash gift, but if you found yourself in the Mango this month and a drink magically appeared your way a wink and nod from the guy dressed like an HB beach bum sporting a UCI cap can be considered a salute!
View all comments by ron
great read ,sightly of the subject but i am thinking of getting a visa for a year through Sunbelt providing the paperwork and i process that in Hull in the UK at a Thai embassy, they seem the real deal has anybody used them before and had a sucess ? cheers
View all comments by Fish
@ PE - I have a similar fund going for Estate Agents, I’m sure we could extend it
@ Fish - I used Hull to get a 3 months business visa a few years back - they were very efficient…. British staff I expect..
View all comments by doctorbond
I do worry that the Soi Lawyer is going to run out of immigration and marriage-related topics to write about pretty soon. I hope he expands his advice to other legal issues affecting expats living in Thailand.
Forewarned is forearmed. I, for one, would appreciate advice on some of the following topics, just in case they ever happen to me.
1. What to do when involved in an auto accident in Thailand. Let’s assume I’m drunk, too.
2. Waking Up Next to a Dead Hooker 101
3. Tips on the art of bribing government officials without putting yourself at risk of getting pinched for attempted bribery
4. What not to do when buyign a condo in Thailand.
5. If I deflower a 17 year old virgin and don’t marry her, can her parents really get me in legal trouble?
6. Lease breaking, girlfriend lockouts, leaky faucets, and all things apartment-related
View all comments by gavinmac
Not sure whether Gavinmac was taking the piss or not.
Let me state for the record that — hand on my heart — I personally know people in Thailand who would have benefited from advice within the past two years on all these topics EXCEPT #5.
Absolutely true.
View all comments by Werewolf
Could I marry a girl with the kwik-nup option to avoid visa runs or working in Thailand and doing the work permit thing?
JD - hiliarious.
View all comments by Young Royal
Young Royal,
If you got legally married (and yes a pre-nup using our KWIK NUP is a good way to limit your liability) and can show a monthly income over 40,000 Thai baht, then you could obtain an “O” Visa. You wouldn’t have to work, but if you did you’d need a work permit, and you would need to reapply for a new “O” visa at least every year.
@ Everyone
I will see what I can do about writing some on the topics discussed above. You keep reading and I’ll keep writing.
View all comments by The Soi Lawyer
Dear TSL
As ever, I am charmed and disarmed by the legal professions unwillingness to accept cash! I’ve been thinking this through (determined to help you out somehow), and I’ve come up with this community-minded initiative which I’m sure the Big Mango Brothers would be keen to host on their premises!
I have some old clothes (in particular, this here shirt on my back) that could serve to keep you warm during the long winter nights of selfless toiling for those who sleep a dreamless sleep, safe in the knowledge you’re fighting the good fight on their behalf. I suggest a big cardboard box by the door where we can all drop our unwanted laundry. I say by the door because it will allow you to discreetly reach inside - from the street - without being seen, and also to avoid upsetting the clientele, who, for all their apparent insensitivity, are easily brought to tears by the sight of extreme poverty, and may feel moved to press currency upon you.
View all comments by Pants Elk
ww - if u remember from day 1 on the blog we have talked about business stuff. I have always wanted some sort of regular business type column but not from me. So far no one has ever stepped up so one night I met TSL in the mango and we discussed a column of some sorts. I think it is cool.
I am not getting the comments of people bashing TSL or the content. My only guess is these are people who don’t do business here or don’t realize how wacky the place is sometimes. I think TSL stories and feedback are interesting. Some people have emailed to ask why we are doing this. Why? It is a blog about Thailand. Business and lawyers happen. I also don’t understand why people don’t realize how many non-Thai lawyers are here and how important they are to business here.
For me TSL content is good stuff and we will keep it coming.
chrispin - no offense but there is a lot of bar girl marriages going on. I am assuming 1000’s per year across all of Thailand. Anyone else want to take a guess? Bar by bar I know of handfuls of bargirl marriages. So they do happen. Seems covering your ass legally is a smart thing to do.
who is Sunbelt?
View all comments by sideshowBOB
Uh … include me out of TSL-bashing, okay? His pieces are extremely useful, and I’d welcome more on the lines suggested above. There; I can be boring, too, when needed.
View all comments by Pants Elk
Really solid post. This is one of those topics where everyone will give you their opinion but very few actually have facts. Good job!
View all comments by Billy Bangkok
@ssb: I for one hate lawyers, can’t stand them, know a few and they are all pricks.
View all comments by bkk22
sideshowbob;Sunbelt are a legal firm advertised in Bangkok Post others are Siam and Tila legal advisors. Just wandering if any of you had used them for Visas..?
View all comments by Fish
Great article. I am especially interested in the part about registering your Pre-nup in Thailand. I married a great Thai girl and we are living in the USA. We executed a Pre-nup long before we were married. I had a USA Lawyer. She had a USA Lawyer. She had a Thailand Lawyer. The Pr-nup was adjusted, poked and prodded by all three. It’s written in Thai and English. Signed off by all three Lawyers.We were married in the USA. We have never registered our marriage in Thailand. I am told that we need to register our Pre-nup at the same time we register our marriage. I do not believe that we are supposed to get married again in Thailand. What’s the correct procedure for me to follow to finish this up right?
View all comments by FarangUSA
Thanks for the info TSL… I might pop in to Rainbow 2 and find my Green Card Girl. Visa applications down to once a year…. CASHBACK.
View all comments by Young Royal
@TSL - Another great post. Thx for taking the time.
@FarangUSA - I got married to my LT Thai GF last year in the UK and legalised it all in Thailand in February. The process was fairly convoluted but TIT as they say. Actually it wasn’t as bad as I had expected but I’ve lived here for long enough to set the bar pretty low
Step 1: Take your Marriage Certificate to your embassy in Bangkok. You need to get you cert verified by some high-up embassy type. For the British Embassy this was a come-back-next-day job. The following day I left the embassy with a letter from the “Head of Mission” or some such saying that the certificate was genuine. Can’t remember how much that cost but something like 1000 baht.
Step 2: Get your Marriage Certificate translated into Thai by a trusted agent. Did mine in Bangkok and i think it cost 200 baht.
Step 3: Take everything you have to the Ministry of Foreign Affairs in Bangkok (near the old airport somewhere, sorry to be so vague but I don’t know BK that well). You fill out a form, hand everything in and then eventually get a letter stating that the signature from the British Embassy is genuine. Again not sure exactly how much we paid but I do know that you could pay a higher fee (1000 or 1500 baht) to get processed the same day which is what we did.
Step 4: We had to take all of that to My wife’s home Government Office to legalise the marriage - dunno if there is a way to do it in BK. Nobody I asked thought it was possible but dunno for sure. In our case it was no prob as we were heading up that way anyway for a few days with a mate. At this point we also needed her Birth Certificate and family book or whatever it’s called. Hand in at office, wait a while and then finally it’s all done although you don’t receive anything to prove it. At this point you can get her surname changed on her ID card if you so wish. If you want her name changed on her passport you have to go back to BK to the Ministry of Foreign Affairs or so we were told.
So minimum two days in BK and (probably) one day in an Isaan rice paddy and you’re all squared away.
View all comments by Disco Stu