International Family Law – Comparing and Contrasting Marriage Legalization in Thailand and the USA

This article analyzes Thai Family Law in the context of marriage registration for foreign nationals in the Kingdom of Thailand.

For those readers who are familiar with the English “Common Law” system, the idea of marriage registration is somewhat difficult to fully grasp at first glance. However, from the family law point of view there are many similarities between Thailand’s “civil law” system and a “common law” system such as that of the USA. However, a notable difference between the Thai system and the “common law” system is the absence of an idea of “common law marriage”. In countries such as the United States there are jurisdictions which recognize “common law marriage”. A “common law marriage” is basically a creation of the Court whereby a judge (or panel of judges) finds that a couple is legally married notwithstanding the fact that they did not solemnize or legalize their marriage.

In Thailand, in order for a marriage to be considered legal both parties must appear before a civil registrar and register their marriage. As “common law marriage” is not legally recognized under Thai law, even a couple that openly lives at the same location for a significant period of time will likely be found to be legally unmarried. Furthermore, as the doctrine of equity is virtually absent in Thai jurisprudence, there is often no equitable recourse for either party in an unregistered marriage. Therefore, regardless of the fact that a couple has had a marriage ceremony and been accepted as married by the community, the Court is unlikely to grant either party any type of compensation should the unregistered marriage dissolve as the Court would likely not recognize the existence of a legal marriage in the first place.

These ideas are rather important for those foreign nationals wishing to marry in Thailand. For instance, if a couple comes to Thailand and conducts a marriage ceremony with all customary solemnization, the marriage may still be considered unregistered if the couple does not actually finalize a marriage registration. This is important to note for those couples from other countries because failure to actually register a marriage could result in the couple’s home country, or countries, not recognizing the legal union.

Of possible further interest to couples who are not Thai nationals is the difficulty of registering a divorce in Thailand if the marriage is legally registered initially, but later dissolves. In Thailand, it may be rather difficult to find a Court that will take jurisdiction to grant a divorce if neither party to the marriage is registered on a Tambien Baan (House Registration) in Thailand, or if one of the foreign parties refuses to make themselves available for personal service of process in Thailand. For all of the aforementioned reasons, those foreigners wishing to marry in the Kingdom of Thailand ought to seek legal counsel prior to marriage so as to avoid possible legal problems at a later time.

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