Postnuptial Agreements in Thailand: Why They Can Be Revoked Without Cause

Under Thai law, either spouse may revoke a postnuptial agreement at any time during marriage or within one year after divorce, without showing cause

Postnuptial agreements – agreements entered into by spouses during the course of marriage – are commonly used in many jurisdictions to regulate property rights, financial arrangements, or clarify terms in the event of separation. However, the treatment of such agreements under Thai law differs in a significant respect: either spouse may unilaterally revoke a postnuptial agreement without needing to show cause. 

This article outlines the legal basis for this rule, examines relevant Thai Supreme Court decisions, and highlights key implications for foreign nationals living in or married in Thailand. 

Legal Foundation: Section 1469 of the Civil and Commercial Code 

The right to revoke a postnuptial agreement arises from Section 1469 of the Thai Civil and Commercial Code, which provides: 

“Any agreement concluded between husband and wife during marriage may be voided by either of them at any time during marriage or within one year from the day of dissolution of marriage, provided that the rights of third persons acting in good faith are not affected thereby.” 

Under this provision, a spouse may unilaterally revoke the agreement: 

• At any time during the marriage, or 

• Within one year after divorce or dissolution, 

• Provided the revocation does not prejudice third parties acting in good faith. 

There is no requirement to demonstrate cause or prove unfairness. The law simply affords either spouse the legal discretion to withdraw from an agreement made during the marriage. 

Rationale Behind the Rule 

The underlying policy reason for this right of revocation is the recognition that agreements made between spouses during marriage may be influenced by emotional or relational dynamics, rather than clear and equal bargaining positions. 

A spouse may agree to certain terms not out of commercial judgment but out of affection, guilt, dependency, or an attempt to preserve the relationship. In such situations, the law provides a mechanism to set aside agreements that may later be viewed as unfair or improvident, even if they were freely signed at the time. 

Relevant Supreme Court Decisions 

Several judgments from the Thai Supreme Court have affirmed this principle and clarified its scope: 

• Judgment No. 4744/2539: A husband transferred part of his land to his wife during marriage under a written co-ownership agreement. The Court held that such a transfer was a valid postnuptial agreement, not a donation, and could therefore be revoked under Section 1469.

• Judgment No. 8739/2551: A postnuptial agreement included a clause preventing either party from cancelling the agreement for 20 years. The Court ruled that such a clause was contrar to Section 1469 and thus void under Section 150 of the Civil and Commercial Code.

• Judgment No. 5485/2537: A husband revoked a property transfer during marriage by written notice. The Court affirmed that this constituted valid revocation under Section 1469. Furthermore, the Court held that once a lawful revocation is made, the resulting right is no longer personal and may be inherited by the revoking spouse’s heirs.

Practical Implications for Foreign Nationals 

For foreign nationals married in Thailand, or who hold assets jointly with a Thai spouse, it is important to understand that postnuptial agreements are not permanent or irrevocable under Thai law. Even if the agreement appears fair and was voluntarily entered into, it remains subject to unilateral revocation by either party, so long as the statutory time frame is observed and third-party rights are not affected. 

Some practical considerations include: 

• Do not assume permanence of postnuptial arrangements, even if similar agreements would be enforceable in your home jurisdiction. 
• Clauses attempting to waive or limit the right of revocation, such as time restrictions, are unenforceable under Thai law. 
• If you are planning to transfer property to a spouse during marriage, be aware that the transfer may later be revoked if based on a postnuptial agreement. 
• If property is subsequently sold or encumbered in favor of a third party acting in good faith, revocation will not affect those third-party rights. 

Can the Right of Revocation Be Avoided? 

In short, no. Thai law does not allow parties to contract out of the right to revoke a postnuptial agreement. Even if a clause explicitly states that the agreement cannot be cancelled, Thai courts will disregard it as being contrary to law and public policy. 

Conclusion 

Thailand’s approach to postnuptial agreements differs from many Western jurisdictions, where such agreements are generally binding unless overturned on grounds such as fraud or duress. Thai law, through Section 1469, takes a more protective stance by allowing either spouse to revoke an agreement made during marriage, without needing to show cause. 

Foreign nationals with marital or property interests in Thailand are advised to seek legal counsel before entering into any postnuptial agreement or making significant asset transfers. While these agreements may still serve useful purposes, it is critical to understand that they are not irrevocable and may be set aside at the discretion of either party. 

For legal advice on marital agreements, asset protection, or cross-border family matters in Thailand, please contact our office to speak with a qualified legal advisor.