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22 Oct

Among the different grounds for divorce in the Civil and Commercial Code is Section 1516(4/1) which allows one spouse to file for divorce if the other has been imprisoned for at least one year. Specifically it states that where “one spouse has been sentenced by a final judgment of the Court and has been imprisoned for more than one year for an offence committed without any participation, consent or knowledge of the other spouse, and the cohabitation as husband and wife will cause the other party to sustain excessive injury or trouble, the latter may enter a claim for divorce”. A legal issue raised by Section 1516(4/1) is whether cohabitation as husband and wife will cause “excessive injury or trouble” as a result of one spouse’s imprisonment for over a year. In Thai Supreme Court Decision No. 11702/2555, the Court held that a spouse must file for divorce within a certain amount of time after the other spouse has been imprisoned for over a year or else cohabitation as husband and wife will not be considered as causing excessive injury or trouble. The facts before the Court were as follows:

  • Husband and Wife registered their marriage in 1996. During their marriage, on February 2, 2001, Wife was convicted and sentenced to four years imprisonment by the Kanchanaburi Provincial Court for attempted robbery. Husband had no participation, consent or knowledge of the crime.
  • On May 10, 2002, the Appeals Court affirmed the Wife’s conviction and sentence, which had the effect of finalizing the judgment by the Kanchanaburi Provincial Court.
  • Wife served her prison term and was released in the middle of 2004. Husband filed for divorce on October 29, 2009 and the issue before the Court was whether Husband could file for divorce pursuant to Section 1516(4/1).
  • The Court held that Husband would have had the right to file for divorce pursuant to Section 1516(4/1) starting from the date after Wife had been imprisoned for at least one year, which was February 3, 2002.
  • However, Husband did not file for divorce until October 29, 2009, which was five years after Wife was released from prison and about seven years after she was imprisoned for at least one year. The Court held that any excessive injury or trouble that Husband may have suffered should have already ended by now.
  • Therefore, the Court ruled that Husband no longer had the right to file for divorce pursuant to Section 1516(4/1).
  • Based on the above decision, it appears that the Court did not consider the nature of Husband’s “excessive injury or trouble” or whether it could have still lasted seven years after Wife had been imprisoned for a year. Therefore, the Court’s decision was a strict interpretation and may be implied to mean that if a spouse files for divorce pursuant to Section 1516(4/1), he or she must do so within a certain period of time or else lose the right altogether. In any case, if a spouse does not mutually consent to divorce, Thai law offers a wide variety of grounds for a divorce to be granted. However, the grounds for divorce may not always be straightforward as they appear; therefore, it is recommended that experienced legal counsel be retained if filing for divorce is the only option.

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