Posthumous Divorce – Non-Existent – Protecting Your Property in a Divorce Proceeding

In light of recent lawsuits dealing with divorce after death, there arises a need to clarify whether or not such exists in this jurisdiction and why it has become an issue in the first place. Ultimately, I trust that this article will help those trying to obtain divorce decrees learn how they can protect themselves and their properties against the harsh effects of divorce and/or death.

To start with, there is no divorce after death. It is true that some American states have started reviewing and amending their legislative enactments to address the issue but since none like that has been done here yet, we stick to the word of the law.

Under Thai laws, death of one spouse puts an end to a divorce proceeding regardless of who filed the case. A divorce decree, on the other hand, puts an end to their marriage ties. When death intervenes pending the issuance of a divorce decree, there can never be a divorce to speak of. It’s just one or the other.

Why then is there a growing concern for what has been dubbed as a “posthumous divorce”? Imagine a married couple whose marriage has turned sour for years and is now contemplating a divorce. A divorce proceeding can be heartbreaking and usually leads to unintended results. It is at this point when a spouse having separate properties should exert all efforts to prevent these properties from being inherited by the very person he or she is trying to break away from.

Intestacy laws could allow one spouse to inherit the entire estate of the other, regardless of source and sometimes, even regardless of property regime, say, in a case where there are no forced heirs or children.

How then, can one’s property be safeguarded against death pending divorce proceedings? Here are some suggestions:

1. Write a Thai Will. A will or testament is a legal declaration by which a person, the testator, names one or more persons to manage his or her estate and provides for the transfer of his or her property at death.

Declarations in a will come alive after the testator’s death. The testator gets to control his property even after death, assuming the will is valid in all its formal and substantial respect.

Family law expert Jonathan Wolfe, Chairman of the family law committee of the American Bar Association issued a word of warning to his divorce clients, “If you have a will, it has to be changed immediately. And if you don’t have a will, you need to have one.”

2. Sign a Thailand Prenuptial Agreement. A prenuptial agreement in Thailand is a contract entered into prior to marriage or civil union by the people intending to marry. The content of a Thai prenuptial agreement can vary widely, but commonly includes provisions for division of property and spousal support in the event of divorce or breakup of marriage.

Marriage is not just a special union between a man and a woman. It is a union of almost everything you have, including your finances. To ensure your financial well-being, especially if you are supporting children from a prior marriage or your soon-to-be wife or husband is not of the same financial stature as you are, you need to sign a pre-nuptial agreement. There can be various reasons for doing this and it usually kills the romance but in the event of marriage difficulties, you will discover how much it can actually save you from heartaches.

3. Keep a record of transactions made involving your separate properties. Separate properties may include those inherited before or during the marriage or those acquired prior to the marriage which does not form part of the conjugal properties.

In the event of death or separation of properties in a Thailand divorce proceeding, one may need to prove that a these separate properties are indeed such. Otherwise, it shall be divided according to the law, which more often than not is contrary to the owner’s will.

For instance, one spouse inherits a house from his parents and they lived in that house in the course of their marriage. The other spouse paid for the maintenance of the house (taxes, repairs, etc.). In the course of the divorce proceeding, the non-heir spouse claims that he is a co-owner of the house, having lived there and spent for its maintenance which could be more than the very value of the house. There lies the problem. In case the heir-spouse dies, the non-heir spouse may entirely lose her right over the house, to the detriment of her other legal heirs (i.e. siblings). If transaction records are kept, the source of funds can be properly determined and the non-heir spouse will simply be reimbursed for his expenses for maintenance. Ownership will remain with legal heirs of the deceased spouse.

These are just some of your options. Which among the above-mentioned ways will adapt to one’s need will depend mostly on the nature and number of properties involved, among other factors. One thing is for sure-it pays to plan for your future and it cannot be done in articulo mortis.