The Family Act of Australia determines the outcome of any financial arrangements made before marriage. In the West this financial arrangements are normally called a prenuptial agreement. You can also after marriage arrange for a post-nuptial agreement however court intervention would be needed for this as it should not be of any detriment to your creditors in Australia or in Thailand. This would become a very expensive process to complete.
The financial agreements or prenuptial agreements are there to ensure that should the marriage end in divorce that everyone will understand as to who gets what and that it had been agreed too before the marriage. The agreement thus covers how the property gets divided and also maintenance after the divorce. These are however not cast in stone as even the best lawyer would never be able to guarantee that the prenuptial or financial agreement will not be interpreted differently at divorce by the courts.
The agreement has to be valid in Thailand as well as in Australia. The following would be the very basics for the agreement to be valid. Note that it is best to speak to a lawyer about this as this is only a brief overview of the process.
Australian Prenuptial Agreements
- 1. The financial agreement has to be in writing, both Thai and English;
- 2. The agreement was filed before or at the same time as the marriage;
- 3. There are no other financial agreements between the parties;
- 4. Both parties understood the agreement and there was no force or threats used;
- 5. Both parties have a copy of the agreement;
- 6. Both parties had independent legal advice before signing the agreement;*
- 7. The agreement has not been terminated by a court;
- 8. There had been 2 competent witness to sign the agreement;*
- 9. The agreement does not contain illegal or reprehensible clauses.
Normally in Thailand when the marriage is registered you have to hand in your prenuptial agreement as well if you are going to make use of one. See the article on property in Thailand when married. (*) Note above that each has to have independent legal advice. Your Thai wife has to get a lawyer to explain it to her in Thai and provide a letter for the agreement explaining that the financial agreement was explained to her and that she understood. This is the most common problem at divorce. Also note above that there needs to be 2 witnesses which satisfies both countries laws. As an example a competent witness in Thailand cannot be deaf. A deaf person in Thailand cannot be a witness to an agreement. This is stipulated in Thai law.
Note also that should you use your Thai wife and a prenuptial agreement to defraud your creditors then the courts are going to set aside the agreement. When getting divorced circumstances might have changed and the courts tend to use their own interpretation of what is considered fair in the circumstances. As an example was that you agreed that in a divorce your wife could get the cars. During your marriage you had an accident and are now disabled and you only have one car which you need for medical purposes.
It is always best to seek proper legal advice before getting married.