Supreme Court Decisions

Interesting Article
In Supreme Court Judgment No. 9681/2557, the defendant was an Algerian national. A divorce action brought under Thai law was therefore subject to the requirements of Section 27 of the Conflict of Laws Act B.E. 2481, which provides that a Thai court may not grant a divorce unless the national laws of both spouses permit divorce.Accordingly, before the Court could consider whether grounds for divorce existed under Thai law, it first had to determine whether Algerian law permitted the spouses to divorce. This was a matter that the plaintiff was required to prove, since foreign law is not ordinarily a matter of which Thai courts take judicial notice.In this case, the plaintiff presented no evidence of Algerian law. The Court of First Instance therefore dismissed the action, and the Supreme Court affirmed that judgment. The Supreme Court held that, even though the defendant had failed to file a defense, the Court was still required to examine whether the statutory condition under Section 27 had been satisfied. In the absence of evidence showing that Algerian law permitted divorce, a Thai court could not grant the divorce even if grounds for divorce might otherwise exist under Thai law.The plaintiff’s argument that the defendant should bear the burden of proving the foreign law because the defendant would benefit from it was rejected. The Court held that the party seeking the judgment bore the burden of proving the relevant foreign law. Nor did relying on Thai law in place of Algerian law alter the outcome of the case.

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In Supreme Court Judgment No. 1292/2558, although the plaintiff was a British national and no expert witness on English law was called to testify, the defendant did not dispute that English law permitted divorce. The Court therefore accepted that fact and was entitled to consider whether grounds for divorce existed under Thai law.The principal issue concerned desertion under Section 1516 (4) of the Civil and Commercial Code. Desertion requires one spouse to leave the other with the intention of no longer continuing the marital relationship, and the separation must not be justified by necessity or other reasonable cause. Mere physical separation is therefore insufficient to constitute desertion.In this case, the plaintiff failed to prove that the defendant intended to desert him. The evidence presented by the plaintiff was merely hearsay, while the facts showed that, before their marriage, the parties had agreed that they would spend the later years of their lives in Thailand. The plaintiff later decided that he no longer wished to return to Thailand. The defendant’s return to Thailand was therefore consistent with the parties’ original agreement and did not amount to abandonment of the marriage.Since the alleged ground for divorce was not established, the plaintiff could not rely on that ground to seek division of the marital property.The Supreme Court therefore dismissed the action and ordered the plaintiff to bear all court costs.

Interesting Article
In Supreme Court Judgment No. 1869/2566, the plaintiff filed for divorce from the defendant, alleging that the defendant had abandoned the plaintiff and their minor child, failed to provide maintenance, and had otherwise engaged in conduct constituting grounds for divorce under Section 1516 of the Civil and Commercial Code. The plaintiff also sought sole parental authority over the minor child.The Court of First Instance granted the divorce. However, when the case reached the Court of Appeal for Specialized Cases, the Court held that, because the case involved a Thai national and a British national, it was governed by Section 27 of the Conflict of Laws Act B.E. 2481. Under that provision, a Thai court may grant a divorce only where the national laws of both spouses permit divorce, while the grounds for divorce are determined by the law of the place where the action is brought, namely Thai law.The Supreme Court held that foreign law is treated as a matter of fact and is not something of which Thai courts are required to take judicial notice. The plaintiff therefore bore the burden of proving that English law, as the national law of the defendant, permitted the spouses to divorce.Since the plaintiff failed to present evidence establishing that point, the Thai court could not grant the divorce, even though the defendant had not raised the issue as a defense. The Court further held that the matter concerned a question of law relating to public order, which the court was entitled to raise and consider on its own initiative.This judgment establishes that, in divorce proceedings involving spouses of different nationalities, the party seeking the divorce must prove that the national laws of both spouses permit divorce and must also establish grounds for divorce under Thai law as the law of the forum. If the relevant foreign law is not proven, a Thai court cannot grant the divorce.