Prenuptial Agreement

[keestha]

Not sure if I am posting this in the right forum, but some of those being married and possibly having one or more (half) Thai children must know the answer to this question. Getting legally married in Thailand, is it posible to draw up a prenuptial agreement? Not everybody will be familiar with this expression which is I believe American English, Brits and so on might have another term for it. It means that after marriage, both partners keep their own bank accounts and other possesions, and in case of a divorce everything is not split up fifty-fifty. The German expression is Guetertrennung, and in Dutch it is huwelijkse voorwaarden, in French maybe stipulations de marriage or something like that. Answers would be appreciated, thanks.

[Casanundra]

Not sure if I am posting this in the right forum, but some of those being married and possibly having one or more (half) Thai children must know the answer to this question. Getting legally married in Thailand, is it posible to draw up a prenuptial agreement? Not everybody will be familiar with this expression which is I believe American English, Brits and so on might have another term for it. It means that after marriage, both partners keep their own bank accounts and other possesions, and in case of a divorce everything is not split up fifty-fifty. The German expression is Guetertrennung, and in Dutch it is huwelijkse voorwaarden, in French maybe stipulations de marriage or something like that. Answers would be appreciated, thanks.

The answer is simply 'yes' you can but the Thai marriage rules are that anything owned prior to the marriage remains 100% yours while after the marriage anything purchased or earnt will be split 50:50 so I am not sure what the pre-nup will do for you other than re-enforce the standard law that's already in place.

Just be aware though that depending on where you are from that some countries don't recognise the pre-nuptial. For example anyone from England would not be able to have their pre-nup recognised and the minute you have kids then the pre-nup could become defunt too. Also be aware that if you have any last wills and testamonies in place that they would become null and void after marriage and would need to be re-drafted and signed with a date for after the wedding.

I am not sure about other rules for other countries so you would have to check.

[Foggy Dew]

Hi Keestha,

I hope the following will be of some help to you, I found Khun Narit to be straight up and aware of the issues and he has good English and also wont break the bank! I have XXXX out my name and the prices he quoted me as these were addressing an earlier email I had sent to him.

Regards.

Foggy Dew.

Dear Mr. XXXX,

Thank you for your email. My name is Narit Direkwattanachai. I am a Thai attorney. My breif background is given herebelow. I am pretty familiar with issues re marriage with foreigners. My wife is also a foreign citizen. For general information about your case, please read our family law brochure enclosed herewith for your information.

Fee Quotation

I quote Baht XXXX to draft your prenuptial agreement in both Thai and English version. If you need our paralegal to accompany your guys to the district office to register the prenuptial agreement, I charge another Baht XXXX. But my fee does not include the notalization proceess at the Ministry of Foriegn Affairs, which you can do by yourself.

Note

Any services/work/advice that is not expressly stated in the scope of work is not given and shall not be assumed to be given.

Background

With respect to my education and experience, I earned my bachelor of laws degree with first class honors from Chulalongkorn University. I received my master of law degree from the University of Cambridge, UK where I was on the British government scholarship. I have an MBA degree in finance from Georgia Institute of Technology, USA. I have experience with Baker & McKenzie, Bangkok office,(Thailand's largest law firm), Baker & McKenzie, Sydney office, Australia and DBS Bank, Singapore. I advise foriegn-owned companies, foriegn investors and foriegn individuals in Thailand on various legal issues including corporate law, commercial contracts, employment law, real estate law, family law and will. For more information about legal services, please visit our website at http://www.naritlaw.com.

I thank you for considering me as your legal counsel for this agreement and I trust that you will find the above information satisfactory. I am looking forwarded to being afforded the opportunity to be of service to you.

I would appreciate if you could let me know where you got my contact from.

Should you have any quesiton, please feel free to ring me at 06 785 0793.

Sincerely yours,

Narit Direkwattanachai, LLM (Cantab)

Attorney at Law

Narit & Associates

12 Soi Ramkhamhaeng 16 Yaek 2

Huamark, Bangkapi

Bangkok 10240, THAILAND

Tel: +66 6 785 0793, +66 2 314 3374

Fax: +66 2 314 3374

Email: [email protected]

Website: www.naritlaw.com

[fxm88]

It means that after marriage, both partners keep their own bank accounts and other possesions, and in case of a divorce everything is not split up fifty-fifty.

Not all prenuptial agreements are designed to keep things separate e.g. clauses about seeking marriage counseling before seeking a divorce, or clauses specifying the minimum number of "intimate encounters" per month. And cheating clauses are (usually) intended to prevent a spouse from cheating -- not to cash in when they do.

But if you are serious about it, you should try to get married in whichever jurisdiction will be adjudicating your divorce. Don't forget your wife will need an independent lawyer representing her or the agreement may later be deemed invalid.

In any case, good luck and congratulations!

Edited February 12, 2007 by fxm88

[Arkady]

Not sure if I am posting this in the right forum, but some of those being married and possibly having one or more (half) Thai children must know the answer to this question. Getting legally married in Thailand, is it posible to draw up a prenuptial agreement? Not everybody will be familiar with this expression which is I believe American English, Brits and so on might have another term for it. It means that after marriage, both partners keep their own bank accounts and other possesions, and in case of a divorce everything is not split up fifty-fifty. The German expression is Guetertrennung, and in Dutch it is huwelijkse voorwaarden, in French maybe stipulations de marriage or something like that. Answers would be appreciated, thanks.

The answer is simply 'yes' you can but the Thai marriage rules are that anything owned prior to the marriage remains 100% yours while after the marriage anything purchased or earnt will be split 50:50 so I am not sure what the pre-nup will do for you other than re-enforce the standard law that's already in place.

Just be aware though that depending on where you are from that some countries don't recognise the pre-nuptial. For example anyone from England would not be able to have their pre-nup recognised and the minute you have kids then the pre-nup could become defunt too. Also be aware that if you have any last wills and testamonies in place that they would become null and void after marriage and would need to be re-drafted and signed with a date for after the wedding.

I am not sure about other rules for other countries so you would have to check.

A farang who is retired in Thailand may not gain much from a Thai pre-nup. If he is thinking about buying a condo in Thailand, it would be best to buy it in his own name before marriage. If he is buying land in his wife's name, it is hers anyway. For some one working or owning businesses or condos for rental in Thailand, there may be an advantage. The assets owned before marriage are individual property are common property but the income from them is communal married property and she is entitled to half. She may also have a claim on salary. The advantage to some one who is likely to invest in businesses and property here in future is clear. I don't what happens to stock portfolios. Perhaps the court would look at the purchase date of each but it would be best to liquidate and make the money disappear out of sight of a Thai court.

For some one living in Thailand with assets overseas would it be worth having a separate agreement for any country you have assets (although this won't help you in the UK)? I had always assumed that, in the worst case, you could shift any liquid assets around to make them very hard to get at. The safest seems to be putting them in the name of an offshore company and/or trust in a Swiss bank account. Swiss courts don't play ball with other countries over divorce rulings (or inheritance tax) and would probably not hear the case themselves, if neither party lives in Switzerland. The house I bought in the UK when I was already living overseas is owned by a BVI company. I did this not to do with marriage but just because it was easy to do (at that time) and I thought it might make things easier for my heirs, assuming I stay overseas, and avoid UK inheritance tax. The BVI ownership would make it harder to get at even for a UK divorce court, particularly if I am still living overseas and the structure could also be reinforced by setting up a trust to own the BVI company shares. The rental income is paid by the agent to the BVI company's acount in HK and I can transfer it anywhere I want from there.

[Swelters]

The sixty-four dollar question is:

Why get married in the first place? Seems to me that these workarounds are all based at some level on a kind of intent to deceive with karma accordingly...

[Valjean]

The sixty-four dollar question is:

Why get married in the first place? Seems to me that these workarounds are all based at some level on a kind of intent to deceive with karma accordingly...

In my case if I get married it will because my gf wants to. It means a lot to her and her family. For me and my family it's not so important. If we marry I will marry with the intention of "forever" but a few years ago I got half, and that was quite fair and the deal, but to be honest I can't afford to take 1/2 of 1/2 which would leave her and most Thai's quite well off and me quite broke. (to my standards).

From the beginning I've been honest about this and there isn't any deception. And in fairness I'm happy if the pre-nub has provisions that take care of her should we come to a bad end (and I hope not). And she has a house on land that is all connected to family and even if the value of what she had and what I had before marrage isn't the same the concept is.

It's not an easy discusson - we all want to believe love is forever but - things happen. If she left it up to me I probably wouldn't bother to get married but truth be told in situations now it's easier to just tell people "my wife". But I know the doing this back home is important to her - and I do love her so we will have some paper to keep things straight and once signed put it away and I hope forget about it.

This thread has been helpful.

[N19Robin]

For the benefit of English and Welsh readers, I understand that English and Welsh courts will often (but not always) recognise a pre-nuptial agreement if it has been obtained through English or Welsh solicitors, even where the wedding takes place in Thailand. But the E & W courts will only deal with the divorce in the first place if both parties have been living as man and wife in E or W. So it's probably no help if you plan to live in Thailand.

If you have children then the agreement is unlikely to survive.

Both the bride and the groom have to have their own separate legal advice, which obviously makes the process more expensive. If you use London solicitors, then you could be looking at a total bill (for both) of GBP 2,500. But you may be able to save money if you get the job done elsewhere in the country, depending on how complex your affairs are.

(PS I am not a family lawyer myself but I've received recent advice on this.)

As for the "moral" side of things, your fiancee doesn't have to sign the agreement. If she genuinely doesn't want to make a claim on you then it should make no difference to her (depending on exactly what type of agreement you have). If she has her own legal advice then she should fully understand the implications.

Edited February 19, 2007 by N19Robin

[jumnien]

Due to very complicated personal finances and partnerships, a pre-nupt was required in our marriage. The ultimate validity of the pre-nupt could be argued, but it was a wonderful process to go through, sitting down with my wife to be and talking about our fears and concerns and communicating. 4 years later I'm not so sure it was necessary; my partners still probably think it was. I'm glad we did it. We learned a lot about each other. If you want to totally protect yourself from divorce don't get married. But, life is about risk, isn';t it.

[Arkady]

Marriage is a contract between two parties. In any contract you hope that things will run smoothy but make provision to deal with it, if it doesn't work out that way. Otherwise there would be no need for any contracts at all.

[Swelters]

The sixty-four dollar question is:

Why get married in the first place? Seems to me that these workarounds are all based at some level on a kind of intent to deceive with karma accordingly...

In my case if I get married it will because my gf wants to. It means a lot to her and her family. For me and my family it's not so important. If we marry I will marry with the intention of "forever" but a few years ago I got half, and that was quite fair and the deal, but to be honest I can't afford to take 1/2 of 1/2 which would leave her and most Thai's quite well off and me quite broke. (to my standards). .......

A fair answer, and I, being in the same position, would not care as well to expose 1/2 of my assets to a short marriage. Or even bring them into Thailand. But this isn't what really happens, is it? The law seems fair too, it's only the stuff you get during the marriage or grant over to the wife in say connection with real estate acquisition that is exposed to the 50 percent rule. And this you would do this only with extreme prudence as the marriage happily proceeds and your confidence increases, right?

It seems to me that if you are not willing to do this, and don't even really want to get married in the first place, then you are participating in a kind of pretend marriage, at least from your point of view. And people have a way of sniffing this out, and it will be said that "O yes, she very fool, she marry fahlang and not real marriage, make by some lawyer trick." And she and her family will lose face in the end and you will suffer in the end.

In the long term, don't we all want the diligent and loving attention of our wives in case, for example, of slow terminal illness? This is asking a lot of someone, it's not clear to me why one should expect this a discounted value just because the wife is Thai. So is saying something like"O she's just Thai, they don't really expect much, I'm leaving most of my money to my kids back home so they can get an MBA."

I don't mean to impugn your intentions here at all, you seem very conscientoius about this decision, these are just some of the things that occur to me

[Valjean]

The sixty-four dollar question is:

Why get married in the first place? Seems to me that these workarounds are all based at some level on a kind of intent to deceive with karma accordingly...

In my case if I get married it will because my gf wants to. It means a lot to her and her family. For me and my family it's not so important. If we marry I will marry with the intention of "forever" but a few years ago I got half, and that was quite fair and the deal, but to be honest I can't afford to take 1/2 of 1/2 which would leave her and most Thai's quite well off and me quite broke. (to my standards). .......

A fair answer, and I, being in the same position, would not care as well to expose 1/2 of my assets to a short marriage. Or even bring them into Thailand. But this isn't what really happens, is it? The law seems fair too, it's only the stuff you get during the marriage or grant over to the wife in say connection with real estate acquisition that is exposed to the 50 percent rule. And this you would do this only with extreme prudence as the marriage happily proceeds and your confidence increases, right?

It seems to me that if you are not willing to do this, and don't even really want to get married in the first place, then you are participating in a kind of pretend marriage, at least from your point of view. And people have a way of sniffing this out, and it will be said that "O yes, she very fool, she marry fahlang and not real marriage, make by some lawyer trick." And she and her family will lose face in the end and you will suffer in the end.

In the long term, don't we all want the diligent and loving attention of our wives in case, for example, of slow terminal illness? This is asking a lot of someone, it's not clear to me why one should expect this a discounted value just because the wife is Thai. So is saying something like"O she's just Thai, they don't really expect much, I'm leaving most of my money to my kids back home so they can get an MBA."

I don't mean to impugn your intentions here at all, you seem very conscientoius about this decision, these are just some of the things that occur to me

First off I will say short of this thread I have no real information on the legal situation with respect to pre-nups that would cover my situation. If it turned out that existing laws covered things then I wouldn’t do something that was redundant. But the point is I want protection for my existing assets.

My gf, who is much younger than me, wanted to know what was her “equity” in the relationship. If she gives the best years to me to my death what does she have? Or if she stays with me 10 years and I want a new wife what does she have? I think this is very fair. The rough deal we worked out (and I don’t know if this is legal or contractually possible but it’s our starting point) was that we’d agree on a settlement amount for each year we are married – we’ve penciled in US$10,000 a year with the pre-nup ending after 20 years - she gets half. (so if we break up for any reason at 15 years I give her US$150,000 + ½ of what we have here) Also agree that I’d have a will and assets that provide for her should I die before that time. We both feel OK with this. She knows I’m not trying to get a free ride, she appreciates my situation and that I will commit to see that she’s OK in all eventualities. We’ve got to do the details, it’s not fun but I think there is a fair solution.

I don’t think this is discounted because she is Thai. If I married someone in the US unless our net worth are very similar I’d ask the same thing (or they might ask of me). The issue that is different here is the huge difference in our net worth. She owns a house and some property but still it’s got to be something like a 100:1 ratio.