Jurisdiction Is The Key
Where you get divorced can determine the result
Each divorce or separation has its own particular circumstances. One common thread, however, is the complexity of financial arrangements. This can be tricky enough when both of you are resident and citizens of the same country. When more than one county or nationality is involved, it can be even more of a minefield – and that’s without even taking children into account. Nevertheless, there are certain principles which apply to most cases, and are worth noting.
Thailand
If you intend to divorce in Thailand, there are two options: uncontested or contested divorce. The uncontested option is usually quick and straightforward. No grounds are needed, and it is an administrative procedure conducted at the local registry.
However, if one of you isn’t a Thai national you need to ensure the foreign country recognises this form of divorce. Many countries now do, but only in certain cases. This could cause problems in the future if the non-Thai wishes to remarry.
A contested divorce goes through the courts and requires certain grounds provided by Thai law.[1] If neither of you is Thai but you both have the same nationality; you may choose to go through the Thai system. In which case, these grounds may not be applicable, provided the laws that country don’t contradict those of Thailand.
The contested procedure is designed to settle disputes on child custody or marital property. It can also be a remedy for couples who have not registered their marriage in Thailand but have been residing or working in Thailand for a while.
Other countries
However, you don’t have to get divorced in the country in which you were married or where you were living while you were together. In fact, you can do it in any country in which either of you are now settled or where one of you holds a passport, provided it recognises that you were married in the first place.
England and Wales, for example, is known for being the divorce capital of the world, because it’s considered to have a generous approach to sharing a couple’s assets. The objective is to get a fair result for everyone concerned. Because of their codified laws, some other jurisdictions tend to apply a more formulaic approach.
You may have an option of where to get divorced; in which case it’s important you choose somewhere which suits you both best. However, the jurisdiction can be determined by law – some courts recognise themselves according to their own tests (e.g. place of habitual residence). This can lead to more than one country qualifying, in which case international principles, such as first in time, apply. So, if you fail to agree on the place, you could be in a race to apply in your preferred jurisdiction first.
In that case, you need to get quick, accurate advice so you can decide which place is best for you; if there is sufficient connection for proceedings to take place there; and if you comply with the procedural requirements (e.g. if you have all of the required documents, notarised and translated marriage certificates).
Disclosure of assets
The location and treatment of disclosed assets could make a difference as to your preferred jurisdiction. Some countries or territories require both parties to give full disclosure of all assets, no matter where in the world they are held. That could mean – amongst others – bank accounts, pension assets, property and interests in trusts. Even if the latter does not count as part of your matrimonial assets, it may still have to be disclosed.
International network of advisers
If you’re getting an international divorce, it’s important to have an international network of advisers to hand, so you can make an informed, timely decision regarding jurisdiction.
MBMG Group can advise you on divorce in Thailand and is a member of the invitation-only GGI Geneva Group International Alliance, the largest global multidisciplinary alliance of independent accounting, audit, law and consulting firms. That means we have access to independent advice in 124 countries, to help you through the process.
For more information and to speak with our advisor, please contact us at info@mbmg-group.com or call on +66 2 665 2534.