Divorce & Marriage Questions

[TheGoose]

I've read through a number of posts on this forum & although my circumstances are not unique they differ slightly from those of posters who have asked questions on these subjects in the past. I have also conducted extensive research elsewhere on the net but I believe you can't beat information from people who have been in the situations I'm about to describe themselves.

Firstly I will give you a bit of background. I am a UK national who has been seeing my Thai girlfriend for 4 years now. I travel to Thailand 2 or 3 times to visit her & she recently spent 2 months with me in the UK. We recently discovered that we are expecting our first child in October & we are both delighted. We are not married as my girlfriend is still currently married to another UK national. They have not seen each other for nearly 6 years now but despite this they have never got round to getting divorced. As a couple we are aiming to get her divorce sorted out, getting married ourselves & then hopefully moving the family to live with me in the UK sometime in 2013. The following questions are around this :

1/ I've been informed that my girlfriend should get divorced before our child is born as if she still carries her husbands name (which she currently does) when our child is born then by Thai law they will assume her husband is the baby's father especially when his family name appears on the birth certificate, is this true ? Also if she is still married when the child is born it could cause a potential problem with the legitimation of the child ? I've read on Siam Legal about legitimation around unmarried parents but my circumnstances are slightly different in that one of the parents is currently married to someone else !

2/ My girlfriend is currently in North Thailand with her family & whislt there she visited a local lawyer. He has told her that as she was married in Pattaya she also has to get her divorce done in Pattaya where she has been quoted a figure of 50,000 baht, does this seem correct (including the price) ? I've read about uncontested (administrative) divorces which appear to require no lawyers & just the spouses to turn up with the correct documentation at the amphur (it appears to be even easier if you divorce at the amphur where the original marriage was registered). Surely the amphur doesn't charge as much as 50,000 bath for this ?

3/ I've read you have to register the birth of the child within 30 days, is this correct ? Ideally I'm looking at having her divorce finalised before the birth so that her surname has reverted back to her family name.

4/ Although it's not necessary to register the birth with the UK embassy in Bangkok to apply for a UK passport for my child is it a worthwhile exercise, ie are there any advantages in doing this ?

5/ I've read that after someone is divorced in Thailand they cannot re-marry within 310 days unless there are special circumstances one of which is a child being born since the divorce. If we do get my girlfriends divorce through before the birth then we should qualify to get married earlier than 310 days under this rule would we not ?

6/ Obviously my child should have no entry problems to the UK once I've got them a UK passport but I will have to arrange a settlement visa for my girlfriend. I've been advised that it would be better for us to get married before applying for this & looking at the requirements for a settlement visa it appears this may be the best option (I have no problems with marrying her by the way) but would you agree this would be the best course of action to take to secure a settlement visa ?

I'm sorry about the length of this post but any advice given will be greatly appreciated.

Many thanks in advance.

[Mario2008]

The mother is currenty married to another person. Under Thai law that means that he will be considered the fahter. Getting a divorce before the child is born doesn't change that, as the child was concieved during the marriage. To complicate matters more, she can divorce him but she cannot not marry you till after the child has been born. As you stated yourself.

What can be done is that the current husband renounce the child as being his, which must be done within 1 year of birth. That means the real father of the child can be determined and the court can make you the legal father of the child.

Regarding the divorce, she and her husband can visit any amhur in Thailand to get a divorce. if they divorce through the court, she needs to petition the court for the area where she is registered on the household registration.

If both agree it is simply both turning up at the amphur and signing the divorce register and turning in the marriage certificate, for which in retun one gets a divorce certificate. The whole prosess takes maybe 30 minutes and costs about 50 baht for some copies of the papers.

If there is property or children involved, one can at the same time enter an agreement regarding the division of property, child maintenance etc. For that a lawyer might be advisable.

Registration of a birth must be made within 15 days, late reproting carries a fine of 500 baht.

[TheGoose]

The mother is currenty married to another person. Under Thai law that means that he will be considered the fahter. Getting a divorce before the child is born doesn't change that, as the child was concieved during the marriage. To complicate matters more, she can divorce him but she cannot not marry you till after the child has been born. As you stated yourself.

What can be done is that the current husband renounce the child as being his, which must be done within 1 year of birth. That means the real father of the child can be determined and the court can make you the legal father of the child.

Regarding the divorce, she and her husband can visit any amhur in Thailand to get a divorce. if they divorce through the court, she needs to petition the court for the area where she is registered on the household registration.

If both agree it is simply both turning up at the amphur and signing the divorce register and turning in the marriage certificate, for which in retun one gets a divorce certificate. The whole prosess takes maybe 30 minutes and costs about 50 baht for some copies of the papers.

If there is property or children involved, one can at the same time enter an agreement regarding the division of property, child maintenance etc. For that a lawyer might be advisable.

Registration of a birth must be made within 15 days, late reproting carries a fine of 500 baht.

Thanks for the reply. I thought there may still be problems surrounding the birth legitimation as the baby was conceived whilst she was still married so your answer on this doesn't come as a complete surprise. As I said she hasn't seen him for over 5 years as he resides in the UK & she resides in Thailand. I have photographic evidence of us being together at the time the baby was conceived so could this not be used in some way to prove I am the father plus what about DNA testing ? I'm also assuming from your comments that having my name on the birth certificate plus my girlfriend with her maiden name doesn't carry much weight in the eyes of the law ?

With regard to the divorce there are no children or property involved & both parties are amenable to it. The only potential issue is having her husband travel to Thailand to have the wedding annulled at the amphur. If he does agree to travel to sort out the divorce I am assuming I can get him to renounce the child as being his at the same time ? In this regard what exactly requires to be done to make everything official ?

Edited June 22, 2012 by TheGoose

[beano2274]

I do remember reading somewhere that as she is still married and pregnant from you, then he can take you to court for a lot of money, (don't quote me on this) but check out Thai Family law. Since he is also a Brit then he might not even now about it.

Why has she waited so long before getting a divorce?

Can you not try to find him in the UK, maybe get him to sign some papers to help you, if he is willing.

[TheGoose]

I do remember reading somewhere that as she is still married and pregnant from you, then he can take you to court for a lot of money, (don't quote me on this) but check out Thai Family law. Since he is also a Brit then he might not even now about it.

Why has she waited so long before getting a divorce?

Can you not try to find him in the UK, maybe get him to sign some papers to help you, if he is willing.

If you are correct with the information contained in your first para then I'll be keeping schtum about it thats for sure ! Unless I've got the wrong end of the stick I think her husband is okay about travelling to Thailand to finalise the divorce as long as its not costing him plenty to do so when he gets there. As Mario has already confirmed the administrative divorce is very cheap & pretty painless so hopefully he'll be happy with that.

She has asked him for a divorce in the past but he has ignored her requests mainly because I think he couldn't be bothered travelling to Thailand & he had no real need to divorce as he had no plans of his own to re-marry. I think he's now aware that I'm in the picture so the divorce is more of a priority.

I do have a phone number for him but I'll only call him if she can't sort out things between them. I don't see any advantage in getting any papers signed here as the easiest divorce option requires him to be present at the amphur in Thailand to agree to the divorce.

Edited June 22, 2012 by TheGoose

[Mario2008]

Yes, if you commit adultry with someone you know is married, you can be sued for damages.

As said, the husband is the father, unless he renounces the child as his. If he renounces the child, then it might be possible for you to become the legal father of the child.

Best is indeed if he travels to Thailand, it is much faster and probably cheaper.

Repudiation (renouncing the child) must be done by petitioning the court. With both parties agreeing and with passport showing the husband was not in the country during time of conception this will not be a difficult case, but will take some time.

http://www.thailawon...rcial code .pdf

Section 1539.

However, section 1545 might be a way out, with the mother requesting on behalf of the child.

The problem for him is that if he doesn't repudiate the child, he will be liable for child support.

[TheGoose]

Thanks again for your reply Mario. I think we are both in agreement with regard to the divorce that the easiest, cheapest & quickest way is for her husband to travel to Thailand & for them to go for an uncontested divorce at the amphur.

I'm still a little unsure as to the best course of action regarding the legitimation of my unborn child. I know from research & your pinned post on the subject that there are 3 options. Option 2 is out for now as the child is obviously too young to agree to my legitimation. I thought we would be okay under option 1 if her divorce went through before the child was born & we then married sometime after the birth. Is this option out as well then given that the child was conceived whilst she was still married to her current husband ? I assume if this is the case it's due to Thai family law seeing him as the legitimate father ? Does this therefore mean that only option 3 (applying to the courts) is available to me ?

Reading section 1545, I take it sui juris is akin to our age of legal responsibility ? I don't see it mentioning in this paragraph that a mother can apply on behalf of her child ?

Edited June 22, 2012 by TheGoose

[Mario2008]

You do not have any option till the husband has renounced the child as his. I would advise that at the same time you and and the mother petition the court for you to become the legal father.

Yes, sui juris means one is competent before the law (under Thai law would be 20+ years old).

No it doesn't say that the mother can apply on behalf of the child, but it is not uncommon that the mother sends the letter to the Public Prosecuter on behalf of the child and the Public Prosecuter takes the court action on behalf of the child. ( I think this will be accepted, but not seen any cases about this).

[TheGoose]

Things have now become a bit more trickier I believe as my girlfriends current husband says he cannot travel to Thailand for an uncontested divorce until November which is a month after our child is due to be born ! My girlfriend is going to attempt to persuade him to travel earlier but if he can't what implications am I looking at with regard to the following :-

1/ Divorce - I don't think it makes much difference to the divorce procedure but if he can't come over until November then going for a divorce via the courts may be an option to push the divorce through earlier. Does anyone know how long a court divorce takes ? He knows the court option could prove costly so he may be amenable to travelling earlier to avoid these costs.

2/ Birth of my child & legitimation - This is my main area of concern. We've already spoken about his need to renounce the child is his & this will still be the case no matter when he travels as will the need for us to go via the courts to have the child legitimised as mine. As any birth has to be registered within 15/30 days I wondered what the implications are for this & the birth certificate if the child is born before the divorce is finalised, ie my girlfriend will still carry his family name which will be shown on the birth certificate alongside mine. Will my child have to take its nother surname (her hubands family name) or can I give the child my surname ? If it has to take the mothers surname at the time of the birth can it be changed later when the legitimate father is recognised ?

3/ Our Marriage - If the divorce takes place after the childs birth then we won't qualify to marry earlier than 310 days under the rule concerning childbirth after divorce. Looking at the other special circumstances I don't believe we qualify under any of them so am I correct in thinking that we would have to wait 310 days before we can get married ?

Hopefully her husband can be persuaded to travel before October then I only have the problems we discussed in my earlier posts :-)

[Geekfreaklover]

Curious about the abdonment aspect. If the husband responds in writing to a Thai lawyer that he is unable to travel to Thailand and has not been in contact with the wife for over five years one would imagine that the wife could obtain a court agreement to divorce on the grounds of abandonment without the husband being present.

[TheGoose]

Curious about the abdonment aspect. If the husband responds in writing to a Thai lawyer that he is unable to travel to Thailand and has not been in contact with the wife for over five years one would imagine that the wife could obtain a court agreement to divorce on the grounds of abandonment without the husband being present.

A divorce through the courts would of course be possible given the circumstances but it would take time & money. If she can persuade him to travel before October then it's probably the best solution for everyone involved.

There are 2 main concerns for me :-

1/ How the childs birth is viewed if they are still married then, ie we want the child to take my surname, is there anything to stop this & my surname being shown for the child on the birth certificate ?

2/ We had planned to try & move the family to the UK in the first half of 2013 with us getting married early next year. If the divorce doesn't go through before the birth it appears that we would have to wait 310 days to get married which would take us into the latter part of 2013. I could always try for a visitors visa for her next year if this was the case but there is a serious doubt the UK would grant her one as if her boyfriend & child are here why would she want to return to Thailand at the end of the 6 month stay. I'm assuming I'm reading this correctly of course ?

[Mario2008]

I don't think the child can be repudiated till after the birth. As said, not untill after the birth can she get a divorce anyway. And right after the birth she can divorce and marry with you. Give the child the last name of the mother, she can change to her maiden name if she doesn't have done that already.

[TheGoose]

I don't think the child can be repudiated till after the birth. As said, not untill after the birth can she get a divorce anyway. And right after the birth she can divorce and marry with you. Give the child the last name of the mother, she can change to her maiden name if she doesn't have done that already.

I think your probably correct about repudiation. It's now looking increasingly likely that divorce may be after the birth of the child. You mention that right after the birth she can divorce & marry me but it doesn't appear that this can be done within 310 days if I am reading correctly the special circumstances where the 310 days waiting period can be reduced ? If I am wrong can you point out which of 4 circumstances listed below I could qualify to get married earlier under ?

1/ A child has been born during such period (where period means the period since divorce took place). This is why we are trying to get her husband to travel to Thailand before the baby is born.

2/ The divorced couple remarry (I assume this means both parties to the previous marriage).

3/ There is a certificate showing that the woman is not pregnant (clearly she is !).

4/ There is an order of the court allowing the woman to marry (a possible option ?).

Given that the divorce is now looking more likely to take place after the birth I am going to ask her to change her name back to her maiden name before the birth. I could then give the child her surname & then change it later when we get married. However, even if she changes to her maiden name, is there anything to stop me giving the child my family name when it is born ?

Edited June 25, 2012 by TheGoose

[Mario2008]

After the birth a doctor can easily declare she is not pragnent, which such declaration the 310 day waiting period is waived.

A Thai person can only have a Thai name, exceptions are when there is a foreign parent. But then it will be the foreign parents last name. As you are not the legal parent, the choice will be between her last name or her husbands last name. (An amphur might of course relent, which is more likely in small places where everyne knows eachother then in a big place).

[TommoPhysicist]

1/ I've been informed that my girlfriend should get divorced before our child is born as if she still carries her husbands name (which she currently does) when our child is born then by Thai law they will assume her husband is the baby's father especially when his family name appears on the birth certificate, is this true ? Also if she is still married when the child is born it could cause a potential problem with the legitimation of the child ? I've read on Siam Legal about legitimation around unmarried parents but my circumnstances are slightly different in that one of the parents is currently married to someone else !

Any child born within a marriage, or within a period of 10 months after birth, will be considered the child of the husband.

Doesn't matter what you do, in Thailand the child will be considered her husbands child.

It is also a serious criminal offense to have sex with another mans wife.

If you were to claim paternity in a Thai court, you would first be required to admit and accept financial liability for a serious offense. A Thai court could (and most likely would) order considerable damages against you and the woman.

Furthermore, you have almost no chance registering the child as yours with the UK, as it will already be entitled to UK citizenship from her current UK husband.

5/ I've read that after someone is divorced in Thailand they cannot re-marry within 310 days unless there are special circumstances one of which is a child being born since the divorce. If we do get my girlfriends divorce through before the birth then we should qualify to get married earlier than 310 days under this rule would we not ?

This law is to retain a husbands rights as a father if his divorced wife gives birth to his child. The special circumstances are a doctors report to say the woman is not pregnant, before getting permission to remarry. This girl is pregnant and therefore, even if divorced, will not be allowed to remarry within the term of the current pregnancy.

Without a divorce, she won't be allowed a Visa to the UK, as the application has to be signed by her husband. Which at the moment isn't you.

PS

If I were the husband, I would be claiming significant damages from you, because I could.

Edited June 25, 2012 by TommoPhysicist

[Mario2008]

We are dealing with civil court her, not criminal court so a judge will not hear about it and refer one to start proceedings before a criminal court if the issue is raised. One must make a complaint, the police doesn't investigate it out of its own.

[TommoPhysicist]

We are dealing with civil court her, not criminal court so a judge will not hear about it and refer one to start proceedings before a criminal court if the issue is raised. One must make a complaint, the police doesn't investigate it out of its own.

I think an admission in Civil court would count in Criminal court, should one wish to make some money a complaint.

[Mario2008]

Civil court and criminal court have a dfferent kind of level of proof required. Normally in civil court it is enough that you make it (very) reasonable/beleiveble that something did happen, while for criminal court you must proof beyond a reasonable doubt. (Easy enough done through DNA of course). That is why often people go after soemone in a civil case when a criminal conviction fails. A faous case of course being the OJ Simpson case.

But I believe the article also says that the person who has sex with a married person must know of the marriage, and that is much harder to proof.

But at this moment this whole question is not an issue and off-topic. The OP now knows about this and if he has questions regarding this he can post them, but otherwise we wil let this topic rest.

[TheGoose]

Thanks again for the replies.

If she can't come to some sort of agreement with her husband re compensation she is contemplating using the courts to petition for divorce. I'm hearing figures of 50,000 - 60,000 baht to go down this route but I can't help thinking this would be a a waste of money ? To give a bit of background they were married in Thailand, lived in the UK for around a year, they split up & she moved back to Thailand where she has been ever since & they haven't seen each other now for around 6 years. There is no property or anything else in Thailand & there are no children. Even if the court did find in her favour is there a reciprocal agreement in place betweeen Thailand & the UK, ie would the judgment be enforceable in the UK & she could get the money the court awarded her ? I've got a feeling this amy not be the case & at worst it wouldn't be recommended that he return to Thailand in case he gets picked up at immigration. I think it might be a case of her being told she has a chance to get money throught the courts therefore getting the person she's dealing with 50,000 or 60,000 baht when in reality its a waste of money as nothing will ever come of it ?

[Mario2008]

What money? You say there are no assets to split and Thailand doesn't know alimoney, only child support.

[TommoPhysicist]

There is no liability on his part.

It is you and her that have broken the law, I would suggest offering him 200kbht for compensation and divorce.

[TheGoose]

What money? You say there are no assets to split and Thailand doesn't know alimoney, only child support.

Thats my point, unless she can claim for abandonment & the fact he hasn't provided for her in the 6 years since they split but were still married, then its a waste of money going through the courts, would you agree ?

Edited June 26, 2012 by TheGoose

[Mario2008]

The amphur route would be much easier and much cheaper.

[TheGoose]

The amphur route would be much easier and much cheaper.

I am aware of that & I had hoped this would be the route she would choose. She is bitter about the way she has been treated by him & is looking for a "pay off" of sorts which is why she is contemplating the court route. What I am trying to ascertain is given what I've said in my previous 2 posts is it worth going down this route, ie is there anything she can claim for or is she wasting her time & money ?

Edited June 26, 2012 by TheGoose

[Mario2008]

As far as Thai law is concerned, she left him and thus I beleive only he can file for divorce for reason of being abandonment.

She will be waisting time and money, unless she goes through divorce proceedings in the UK. If she want to make it a fight, so can he. With all the extra cost and extra stress. And not to forget that she will need him to repudiate the baby as his.

Anger is a powerful energy, but can also be very destructive.