The lady vanishes: Personal disappearance in Thailand _ Part I

[Dave The Dude]

The lady vanishes: Personal disappearance in Thailand _ Part I

• Published: 2/10/2011 at 12:00 AM
• Newspaper section: Spectrum

We recently wrote a column on bigamy and received a number of questions on personal disappearance. The questions went something like: ''Let's say you were married in Thailand to a Thai and later split up. Then your spouse goes missing. What do you do if you want to remarry?

Remember one thing: in Thailand, if you're only married in a religious ceremony you don't have to get divorced if you split up. You only have to get divorced if you've been married in a civil ceremony at a district office in Bangkok or at provincial district offices.
So, assuming you were married in a civil ceremony, how could you remarry if your present spouse has disappeared? In such a circumstance, perhaps this person has gone somewhere far away or perhaps just to live with someone else and is avoiding everybody they knew from their previous life. Or the person who has disappeared could be dead.
Thai law offers a solution to this problem. Sections 61 and 62 of the Civil and Commercial Code of Thailand provide that if a person has left home, and no one knows the whereabouts of that person for a period of five years, any interested person (such as a former spouse) can file an application with a judge.
The judge, after looking at the evidence, can make the decision that the person has disappeared. This, in turn, can be used as grounds for terminating the marriage under Section 1565 (5) of the Thai Civil and Commercial Code.
The five-year period can be reduced to two years in three circumstances, namely, if the missing person disappeared as a result of:
- A battle or war.
- A vehicle accident or disappearance _ this could include a car crash, shipwreck or plane crash.
- Some other known peril such as a natural disaster or accident.
How would you make use of these legal provisions?
You would obtain as much evidence as you could that the person had disappeared. For example, you might ask the person's family members to testify that the individual had left home and disappeared. You could also get similar statements from the person's former employers, neighbours and friends. A judge has wide discretion on what evidence to accept in such a case and can rely on either written or oral testimony.
Your lawyer would then file an application to a judge. If the judge agreed with the evidence you had gathered, he or she would issue an order to the effect that your spouse had disappeared. You would then have to file an application to the court for the dissolution of the marriage, using the grounds of disappearance. The court would then issue an order dissolving the marriage.
You could then remarry by showing the district office a certified copy of the order from the judge.
But what happens if the disappeared person shows up again?
Let's say, for example, you've remarried and a year after the wedding your previous spouse walks in the door, tells you she's been travelling the world and demands her share of the earnings of your now-dissolved marriage.
Since the marriage has been dissolved you cannot be accused of bigamy and your earlier marriage will be considered void.
But what if you had only obtained the order of disappearance but not the dissolution of marriage because you hadn't wanted to remarry, only to cut off your former spouse's rights in connection with the marriage? The adjudication of disappearance alone will cut off your spouse's rights under Thai law to claim half of what was earned earned during the marriage or as a statutory heir. Thus your former spouse couldn't claim these rights. If you had somehow remarried without dissolving the marriage, however, you could be prosecuted for bigamy.
Sections 61 and 62, discussed above, apply to other situations that we'll discuss next week.

 

[Dave The Dude]

Part II

• Published: 9/10/2011 at 12:00 AM
• Newspaper section: Spectrum

Last week we began a discussion of the law of personal disappearance in Thailand. The real issue for all these cases is what happens to the legal relationships and property of those who have disappeared.

This may sound more sinister than it is. Very often a person confronts problems that her or she can't face, for example a bad marriage or a business relationship that has gone disastrously wrong. Sometimes a person in this situation will simply leave town and not tell anybody where he or she is going. Or maybe the person only tells a very few, who don't let on to others what has happened.
But the fact is that there may be people left behind with a legal mess to untangle.
Sections 61 and 62 of the Civil and Commercial Code of Thailand provide us with the tools to deal with these problems. Under these sections if a person has left home and no one knows whether he or she has gone for a period of five years, any interested person can make an application to a judge. If the judge decides that the person has disappeared, a presumption arises that the person has died.
We explained last week how you would get a judge to make the decision that the person had disappeared. We also explained that the five-year period could be reduced to two years if the person disappeared as a result of:
- A vehicle accident.
- A battle or war.
- Another known peril such as a natural disaster or mass accident.
Let's look at four specific situations in which sections 61 and 62 could be used to resolve personal and financial problems.
The first is the missing testator. Let's say you are the heir of someone who has disappeared. In Thailand this can happen in two ways. The missing person could have a will in which you were named a beneficiary. Alternatively, you might be a statutory heir under Thai law, which means you have a right to inherit from a person even if that person doesn't have a will. An example of a statutory heir is a wife, son or daughter.
Let's say, then, as an example, that your father has disappeared and not been heard from in six years. Your mother is broke and you need money to go to school. Your father was the sole owner of a bank account that contains several million baht, and a house. You could apply to a court under sections 61 and 62 to have your father declared as disappeared and have these assets distributed either through the will or to the statutory heirs.
The second situation is the missing heir. Let's assume this time that your mother has died, leaving the property mentioned above in equal shares to you and your brother. But your brother has disappeared. What happens to his share? You can apply to a court to have your brother declared disappeared. The other heirs will then share as though your brother has died. For example, if your mother has a will and it provides that if a beneficiary dies before she does, the beneficiary's children will get the beneficiary's share, that's what happens. On the other hand, if the will says if a beneficiary dies the other beneficiary's heirs get that beneficiary's share, and you are the only other heir, you get everything. This example assumes, by the way, that there are no other statutory heirs that would have superior rights.
The third situation is the missing business partner. Let's say, for example, you have a business with a friend. You and he have a Thai company. Both of you are the directors and together own most of the shares. The basic documents of the company provide that both directors must sign for major decisions of the company. What if your friend disappears? Is the company deadlocked forever?
No, because you could apply to a court for relief under sections 61 and 62. If your friend is presumed dead, his heirs, either through a will or his statutory heirs, would take over. Assuming the other shareholders and directors agree, one of them could be named a director and the company could resume its operations.
A similar solution applies to an ordinary business partnership. If the partnership was deadlocked do to the disappearance of one of the partners, a declaration of disappearance under sections 61 and 62 would cause the partnership to be dissolved and allow the other partners to resume active business.
The final situation is that of the disappeared tenant. Thai law provides, in effect, that if a lease does not provide otherwise and if the tenant dies, the lease is terminated. This means all rights under the lease go back to the landlord. Let's assume, for example, that your wife, a Thai, owns a plot of land. Ten years ago she gave a 30-year lease for the land to Mr X, who built a house on it. He has disappeared, but his wife is there. She's short on money, however, and is behind in the rent.
Your wife could apply to have Mr X declared disappeared. The lease would revert to your wife and she could take possession or rent it to someone else.
Of course, Mr X could have prevented the lease being terminated on his presumed death by providing in the lease that it survived his death and would, in this event, go to his wife. Likewise, he could have made his wife a joint tenant on the lease. In this case, Mr X's wife would take over, not your wife. Your wife would, in these cases, be limited to suing Mr X's wife for the rent or to terminate the lease for non-payment of the rent.