Unilateral Request For Divorce Abroad

[migangae]

Just to the point:

My Thai wife and I, Swiss Citizen, no kids, legally married in Switzerland 15 years ago, (marriage was never registered here in Thailand) are currently living in separate households since 6 years in Thailand. Prior to our separation we lived in a joint household in Thailand. 4 years ago my wife tried to sue for divorce in the Thai court since our marriage is recognized legally here in Thailand, but her lawsuit was dismissed because the judge stated there were no sufficient grounds for granting a divorce.

However, currently my wife is making attempts to initiate unilateral divorce procedures in Switzerland. Given that none of us live in Switzerland, ie both always lived in Thailand, how likely is it she may be successful in choosing that route?

Any feedback is appreciated!

[Mario2008]

The Thai courts can only divorce you on the grounds mentioned in the law, but you can get a divorce at any amphur in Thailand without needing to have grounds for a divorce. The only requirement is that you both agree to the divorce.

As your marrige was not registered within Thailand your first step would be to register the marriage in Thailand. In essence, have the marriage registered here by having the marriage certificate certified by the Swiss embassy, have it translated into Thai and then certified by the Thai foreign Ministry. Next you go with all the papers to an amphur and your foreign marriage is registered in Thailand.

With that being registred in thailand at the amphur, it shuld be possible to divorce at the amhur by simply both showing up and signing the divorce register.

Best to inquire first at an amphur where they are used to foreigners and now the procedures for marriage and divorce involving a foreigner.

[migangae]

Mario thanks for your feedback. Since my wife is not willing to register our marriage at the amphur for fear to have to split our joint assets which are based in Thailand in case I sue her for divorce in the Thai court, we have a contested divorce. The reason she is trying to sue in the Swiss courts because she thinks she can get a divorce without having to reveal all our jointly build up assets.

My apologies if I have not made myself clear in the introduction.

[Mario2008]

Under Thai law you only split assets that was gained during the marriage, everything you had before that will be left out.

While divorcing at the amphur, you can enter a divorce agreement and make a different division of assets. It doesn't have to be a 50-50 split. So that is soemthing you can negotiate with her in return for a fast divorce.

If she succeeds to bring a case in a Swiss court, you must also be called and the division of assets will be discussed. In all, she will not gain much, only have bigger court fees.

[Swiss1960]

Mario thanks for your feedback. Since my wife is not willing to register our marriage at the amphur for fear to have to split our joint assets which are based in Thailand in case I sue her for divorce in the Thai court, we have a contested divorce. The reason she is trying to sue in the Swiss courts because she thinks she can get a divorce without having to reveal all our jointly build up assets.

My apologies if I have not made myself clear in the introduction.

Mingangae: You should have a look at "Bundesgesetz über das Internationale Privatrecht" (Federal Act about international privat law) and their at paragraphs 60 ff

Your wife can sue for divorce in a Swiss court at your "Heimatort" (home town), since you both live abroad. If she can prove that you are already living separated for more than 2y, she will get the divorce pretty quick under Swiss law. If you still have a registered address in Switzerland, that is the place of jurisdiction, where your wife would need to file for divorce and that is also the address where the court would send the divorce notice for you to act on.

So the main question is: Are you registered at the Swiss Embassy for living in Thailand? That would be a pretty important fact, as the Swiss court will then have to inform you about the divorce request through the Embassy and give you the chance to enter your own claims / statements and specifically, you will be in a position to reject any of her claims about assets in Switzerland and also, you will be able to enter into the equation any assets that you have in Thailand.

Attention: NOT being registered and not being reachable would mean that the court would publish the divorce request of your wife in the relevant Swiss news channels and if you don't see that and not answer, then the court would issue the divorce after the waiting period and only take into account what your wife told them...

So: make sure that the Swiss authorities know where you are registered, your Heimatort and your Embassy need to know how to reach you in case your wife files for unilateral divorce in a Swiss court.

[migangae]

thanks Swiss 1960 for guiding me to the source of the law. In the mean time I did check with the Swiss Embassy in Bangkok and found to my surprise that my wife has taken "silently and without me noticing it " domicile in Switzerland. The embassy would not tell me when she moved her residency to Switzerland and I am wondering how I can find out about this. The only thing I know that she has spent last year a few weeks in Switzerland to be treated for a medical illness but overall she spent most of her time in Thailand. I am not sure what constitutes a domicile by Swiss Law but I am sure based on her credit card and telephone records it would not be too difficult to establish that her life is centered around Thailand. I am wondering how I should organize my legal defense given that the Swiss courts would not be able to assess our jointly built-up assets in Thailand which constitute almost all our joint assets. Any views are appreciated.

[Swiss1960]

First, I am not a lawyer, but due to my personal situation (divorced from a non-Swiss woman) well informed after a long legal battle.

Most important: I assume that when you left Switzerland, you did officially "abmelden" (deregister) in Switzerland and "anmelden" (register) your new domicile with the Swiss Embassy? That is a key point, as a Swiss court will try to reach you in case of a divorce request, even if your (still) wife would tell them that she does not know where you live... so you might want to check with the Embassy and even with your "Heimatort" that they have a legal address for you. That's to ensure that the divorce can not happen without you knowing it...

It is pretty easy to take domicile in Switzerland... she tells the Swiss Embassy that she is moving back to Switzerland, she signs a contract for an apartment (can even be a contract as Untermieter (subtenant) with a friend / relative) and goes to the Einwohnerkontrolle (resident department) of that city and says "I am living here now". From that day on she is domiciled back in Switzerland and she can sue for divorce in that district (zuständiges Gericht am Wohnort / competent court at the place of living). It is absolutely irrelevant that she lived in Thailand before, it is even irrelevant that she might move back to Thailand after a possible divorce.

Now that your wife is registered back in Switzerland, So she can sue for divorce at her place of living, she can even claim for "unentgeltliche Rechtspflege" (free legal assistance), if she has no money. For the divorce court, it does first of all not matter where the assets will be that she might claim to be entitled to... if your wife files for unilateral (einseitig) divorce, she will tell the court which assets are located in Thailand, which assets come from Switzerland (private pension (3. Säule), company pension, AHV, accounts in Swiss banks, other assets), why she thinks she should get control over these assets and what she thinks these assets are worth... it will then be up to you to counter these claims... and it will be the court decision to decide whom to give what...

Note: It is a completely different thing how she can later enforce the decision of the Swiss court in Thailand with regards to fixed assets in Thailand... In the opposite case (Thai divorce and Swiss assets), Swiss courts would normally accept and enforce a Thai divorce verdict according to the international privacy laws... if however you have a regular Swiss pension (AHV, 2. oder 3. Säule), then the court would issue a request to the relevant paying parties and order them to split those incomes according to their decision. Her lawyer could even claim that she has access to the majority of your pension money and tell the court that she then does not request any of the assets in Thailand.

Recommendation: If you know where your wife lives now, find yourself a divorce lawyer in that district and get him up to speed in case your wife would sue for divorce. Your chance for a decent divorce decree is the higher the better your lawyer knows the local court and how they normally make their decisions. I know... lawyers take anywhere from 200 to 400 Swiss franc per hour, but depending on the list of assets (again... don't forget pensions if you have), it might be worth while to be prepared. Alternative of course is to find yourself a divorce lawyer at your "Heimatort" and sue yourself for divorce based on the 6y you already live apart.

[migangae]

Swiss 1960 you are spot on! Is it possible to communicate by private channels? It would help tremendeously. Thanks a lot.

[Swiss1960]

Swiss 1960 you are spot on! Is it possible to communicate by private channels? It would help tremendeously. Thanks a lot.

sure, send me a PM with your mail address, we can continue there...