This article will discuss the process of filing for divorce and the reasons for doing so.
In Thailand, The act of divorce can be done in two ways: divorce by mutual consent and divorce by court judgment. Each method has its own specific details, as follows:
Divorce by mutual consent
It is the termination of the marital relationship by mutual agreement, which is the best way to separate. The law does not impose complex conditions for divorce through this method; it simply requires the agreement to be in writing and signed by at least two witnesses. Afterward, this agreement is registered, completing the divorce according to the law. This written agreement can be made anywhere. However, if one party refuses to register the divorce, the other party can bring the case to court to enforce the divorce agreement. The statute of limitations for filing a lawsuit based on the divorce agreement is 10 years from the date both parties record the divorce agreement.
Divorce by legal decree
It is divorce initiated by citing reasons as stipulated by the law to file a case in court. The court is requested to issue a judgment for divorce, allowing the couple to legally separate. The reasons for filing for divorce in this manner can vary.
The reasons for divorce arising from the fault of the spouse are divided into:
1. The husband or wife has supported, praised, or glorified another person, or has become a concubine, or maintained a concubine, or has committed adultery with another person.
Supporting, such as when one spouse takes responsibility for the expenses of another person’s livelihood, buys a house for them to live in, or provides monthly financial support in a continuous and enduring manner similar to that of a spouse. If it is support provided in any other capacity, this reason cannot be cited for divorce. Once the court has granted the divorce, the party who provided support is entitled to claim support expenses from the other party, including those who received or witnessed the support.
A concubine or maintaining a concubine refers to a person who cohabits with a spouse who already has a husband or wife. Whether someone is considered a concubine or is maintaining a concubine, it must be considered whether the other spouse consents or acquiesces. If the other spouse consents or acquiesces, this reason cannot be used for filing for divorce.
Engaging in adultery with another person differs from maintaining a concubine in that the other person is still single.
2. The husband or wife behaves badly, regardless of whether such behavior constitutes a criminal offense.
If, due to the fault of the other party, one has been severely humiliated or insulted, or if, despite being the spouse of the party who continues to behave badly, it causes the other party to be despised or hated, or if, taking into account our joint circumstances and status, my spouse and I have considered it and if it continues to be my spouse in the future, it would cause undue harm or distress. These are all reasons for the other party who has not behaved badly to file for divorce, provided that they have not consented to or acquiesced to such misconduct.
3. The husband or wife inflicts physical or mental harm or torment, insults, ridicules, or humiliates the other party or their immediate family, and constitutes severe harm.
If such actions are not severe, they cannot be used as grounds for divorce because it is common for spouses to have disagreements. Grounds for divorce under this point include actions against the immediate family of the other spouse as well. Harassment includes mental torment of the other party as well and must be considered on a case-by-case basis.
4. The husband or wife intentionally deserts the other party for more than 1 year.
This abandonment must be intentional and deliberate, such as separating and residing elsewhere without the intention of returning to live together again, which is crucial. Even if support such as paying bills for utilities is still provided after the abandonment, this reason can still be used for filing for divorce.
5. The husband or wife has been finally sentenced to imprisonment and has been imprisoned for more than 1 year for an offense for which the other party was not involved or did not consent to, acquiesce to, or was unaware of. Continuing to be married to each other would cause undue harm or distress to the other party.
If there is no undue harm or distress, such as being released from imprisonment and living together continuously for up to 5 years, this reason cannot be used for filing for divorce anymore.
6. The husband or wife fails to provide proper support or care for the other party or behaves abusively towards each other as husband and wife.
This action must reach a level where the other party experiences undue distress, taking into account our joint circumstances and status as husband and wife. The law allows for divorce because it mandates the duty of spouses to support each other according to their means. If one party fails to provide support and causes undue distress to the other, the distressed party can claim support expenses. If this is unsuccessful, it can be used as grounds for divorce.
Being abusive towards each other as husband and wife means behaving in a manner that spouses would not normally act towards each other, resulting in undue distress to the other party. For example, if a husband brings a gun and shoots at his wife, even if he misses, this would be grounds for divorce under this provision.
7. The husband or wife commits adultery, resulting in a written record of misconduct.
It can be seen that this ground must be related to misconduct only. Using adultery as a ground for divorce is not permissible. This ground must be related to significant behavior or have an impact on living together. If there is no impact, such as breaking an agreement to cover one’s mouth when sneezing, it cannot be used as a ground for divorce. However, if it can be proven to be significant behavior and has a severe impact on the marital relationship, it is another case.
The additional grounds for divorce in the criminal law compilation
In reality, divorce is a civil matter, but the Criminal Code, amended by the Criminal Code Amendment Act (No. 27) B.E. 2562, Section 4, published in the Royal Gazette on May 27, B.E. 2562, added provisions regarding sexual offenses. Section 276, paragraph four, stipulates that ‘if an offense under paragraph one (rape by compelling) is committed between spouses, and if the spouses still desire to live together, the court may impose a penalty less than that prescribed by law, or may impose conditions to control behavior instead of punishment. In cases where the court imposes imprisonment and one spouse does not wish to continue living together and desires divorce, that spouse shall notify the court, and the court shall instruct the public prosecutor to file for divorce.’ This makes it a ground for divorce outside of civil and commercial codes, with the divorce process differing from usual cases. According to the law, the spouse wishing to divorce must inform the court, after which the court will instruct the prosecutor to file for divorce.
Grounds for divorce that stem from causing the marital relationship to end or become unable to continue normally and happily.
It is a ground for divorce that arises from external factors, which the law deems to be of no benefit for the other spouse to endure further. Therefore, it gives the opportunity for the other spouse to file for divorce to start a new life together. Such reasons include:
1. Husband and wife have voluntarily separated due to reasons that make it impossible for them to live together. They have lived apart happily for more than 3 years continuously, or have been separated according to a court order for more than 3 years.
The fact of separation based on mutual consent disregards whether it arises from severe circumstances necessitating separation or not. However, the separation must be voluntary and mutual for both parties in order to be used as grounds for divorce. If it is unilateral, it cannot be used as grounds for divorce. However, if the separation is based on a court order, there must be a reason that if the parties live together, it would pose a significant danger to their physical or mental health or cause severe emotional distress.
2. Husband or wife is declared missing by the court, or has been absent from their domicile or habitual residence for more than 3 years without anyone knowing for certain how they met their demise.
The legal codes of civil and commercial law have stipulated conditions for being declared missing. However, even if the court declares someone missing, it does not automatically terminate the marriage because it is not a natural death that would terminate the marriage. Therefore, the cause of disappearance must be brought to court to petition for a divorce decree.
Therefore, even if there is a genuine disappearance, as long as there is no divorce petition filed by either the husband or the wife, they still maintain their status as spouses. Conversely, if the court issues a divorce decree due to disappearance, even if the court later revokes the declaration of disappearance, it does not reinstate the husband or wife as spouses again.
In the case where someone has been absent from their domicile or residence for more than 3 years without anyone knowing their whereabouts, it is possible to file for divorce without having to request the court to declare the missing spouse as disappeared beforehand. This is because to petition the court to declare someone as disappeared, there is a requirement that the absence has lasted for 5 years.
3 If a spouse has had an abnormal mental condition for more than 3 years.
Such a mental disorder is difficult to cure, and the mental disorder must be to the extent that the spouses cannot continue living together.
4 If the husband or wife has a severe communicable disease that may endanger the other party, and the disease is chronic and incurable.
Currently, it seems that only HIV/AIDS remains as the single disease that can be used as grounds for divorce.
5 The husband or wife has a physical condition that prevents them from engaging in sexual intercourse for life.
If it’s a temporary condition, it won’t be a reason for divorce. The act that leads to the physical incapability to engage in sexual intercourse is not necessarily caused by the party seeking a divorce.
All of the aforementioned are reasons stipulated by law that can be cited as grounds for divorce. If the divorce leads to financial hardship for one party, the guilty party must provide financial support to the other party. However, if the party entitled to file for divorce has demonstrated forgiveness, the right to file for divorce is forfeited.