Thailand: A new dawn - Thailand's landmark legislation on marriage equality

In brief

In celebration of Pride Month in Thailand, on 18 June 2024, the Senate passed the act amending the Civil and Commercial Code, a landmark piece of legislation that champions the universal human right to form a family ("Marriage Equality Law"). This law is currently awaiting royal endorsement, after which it will be published in the Royal Gazette and officially come into effect 120 days post-publication. This makes Thailand the first country in Southeast Asia to enact a law concerning marriage equality. This transformative law not only legalizes marriages beyond traditional norms but also signifies that love transcends boundaries. From a legal standpoint, it brings about a paradigm shift in Thailand's family law. Here, we will discuss a high-level understanding of its implications and the transformative changes that the Marriage Equality Law will bring upon its effectiveness.


Contents

In more detail

Family law in Thailand has a rich and evolving history, reflecting the nation's distinct cultural and societal values. Initially, the law embraced polygamy, permitting a man to have multiple wives. Later, modern Thai law adopted monogamy, restricting marriage to a union between a man and a woman. Same-sex marriage was not recognized, primarily because the traditional objective of marriage was procreation. This notion was also reflected in a significant ruling by the Constitutional Court of Thailand in 2017. However, societal shifts towards inclusivity began to emerge following the legalization of same-sex marriage in the Netherlands in 2001. This sparked calls for change in Thailand, culminating in the successful enactment of the Marriage Equality Law more than two decades later.

The Marriage Equality Law is characterized by its simplicity – the term "a man and a woman" has been changed to "two individuals," and the term "husband and wife" has also been universally replaced with "spouses." This signifies that the rights, responsibilities and liabilities previously attributed to a husband and a wife under the old law are now applicable to married couples, irrespective of their biological sex. However, certain provisions that naturally apply only to a man and a woman remain unaltered. This Marriage Equality Law is designed to ensure that all individuals, regardless of their biological sex, are granted the same fundamental rights in marriage under the Civil and Commercial Code.

Key changes

  1. Marriage and family formation without biological sex limitations

The Marriage Equality Law advocates for a pivotal shift in the definition of marriage as a partnership between two individuals, replacing gender-specific terms such as "men," "women," "husbands" and "wives" with gender-neutral language as appropriate. This change ensures that spouses have equal rights and responsibilities in their relationship, regardless of biological sex. For example:

  • Division of personal assets and marital assets
  • Mutual care responsibilities
  • Rights to receive reasonable support and proper care from the other spouse
  • Inheritance rights
  • Rights to seek compensation for adultery
  1. Catch-all provision

The Marriage Equality Law universally specifies that spouses who legally register for marriage will be entitled to rights and subject to obligations under any laws and regulations that establish the rights and obligations of a husband and a wife or spouses, regardless of whether the terms used in other laws are changed to align with the Marriage Equality Law. For example, under Section 20 of the Workmen's Compensation Act B.E. 2537 (1994), a husband or a wife is entitled to compensation from the employer of their partner who died during a performance of work. Moving forward, this provision will apply to all spouses.

  1. Betrothal

Traditionally in Thailand, only a man could propose marriage to a woman by giving property to her as evidence. This is called "Betrothal." Under the Marriage Equality Law, a person, regardless of biological sex, can propose marriage under the concept of "Betrothal."

  1. Age for marriage

The minimum age for marriage is changed from 17 to 18 to comply with the Child Protection Convention. This change is not directly related to a gender issue, but Thailand is taking this opportunity to modernize the law and align it with child protection principles.

  1. Cause for divorce

The Marriage Equality Law recognizes affairs with individuals, irrespective of their biological sex, as a valid ground for divorce or compensation claims.

Interesting issues

  1. Marital asset management

Couples should prepare to embrace the responsibilities and liabilities that come with marriage, especially concerning asset management. Prenuptial agreements and wills are tools worth considering for planning and protecting marital assets.

  1. Decision on medical treatments and health services

When a spouse is in a stage where they cannot make medical decisions, e.g., a vegetative stage, the other spouse is entitled to make such decision on receiving or refusing medical treatments on their behalf.

We note that the concept of a "Living Will" under Thai law allows individuals to specify their wishes for medical treatment in advance, ensuring their spouse can make informed decisions during difficult times.

  1. Incapacitated statuses

If a spouse is incapacitated, the other spouse can be appointed as their legal guardian or curator. Couples should be aware of this provision and prepare accordingly to protect their spouse's best interests.

The enactment of the Marriage Equality Law demonstrates Thailand's dedication to fostering an environment of inclusivity, celebrating diversity and upholding the principles of equality.

For further information, please contact us.


Copyright © 2024 Baker & McKenzie. All rights reserved. Ownership: This documentation and content (Content) is a proprietary resource owned exclusively by Baker McKenzie (meaning Baker & McKenzie International and its member firms). The Content is protected under international copyright conventions. Use of this Content does not of itself create a contractual relationship, nor any attorney/client relationship, between Baker McKenzie and any person. Non-reliance and exclusion: All Content is for informational purposes only and may not reflect the most current legal and regulatory developments. All summaries of the laws, regulations and practice are subject to change. The Content is not offered as legal or professional advice for any specific matter. It is not intended to be a substitute for reference to (and compliance with) the detailed provisions of applicable laws, rules, regulations or forms. Legal advice should always be sought before taking any action or refraining from taking any action based on any Content. Baker McKenzie and the editors and the contributing authors do not guarantee the accuracy of the Content and expressly disclaim any and all liability to any person in respect of the consequences of anything done or permitted to be done or omitted to be done wholly or partly in reliance upon the whole or any part of the Content. The Content may contain links to external websites and external websites may link to the Content. Baker McKenzie is not responsible for the content or operation of any such external sites and disclaims all liability, howsoever occurring, in respect of the content or operation of any such external websites. Attorney Advertising: This Content may qualify as “Attorney Advertising” requiring notice in some jurisdictions. To the extent that this Content may qualify as Attorney Advertising, PRIOR RESULTS DO NOT GUARANTEE A SIMILAR OUTCOME. Reproduction: Reproduction of reasonable portions of the Content is permitted provided that (i) such reproductions are made available free of charge and for non-commercial purposes, (ii) such reproductions are properly attributed to Baker McKenzie, (iii) the portion of the Content being reproduced is not altered or made available in a manner that modifies the Content or presents the Content being reproduced in a false light and (iv) notice is made to the disclaimers included on the Content. The permission to re-copy does not allow for incorporation of any substantial portion of the Content in any work or publication, whether in hard copy, electronic or any other form or for commercial purposes.