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Legal Matters: Pride or Prejudice?

What Thailand’s upcoming bills and amendments have in store for same-sex partners

Community
By The Phuket News

Sunday 10 July 2022, 01:58PM


In a landmark move, Thailand’s Cabinet approved the Life Partnership Bill on June 7, 2022 which, if implemented, will make the Kingdom the first country in Southeast Asia to legalise unions between people of the same sex.

This bill, along with three other bills on same-sex unions, passed their first hearing in parliament on June 15, 2022, moving the country closer to granting legal recognition to same-sex couples. Though this can be considered a step in the right direction, particularly as Pride Month drew to a close on June 30, all four bills cannot be enacted simultaneously given the differences surrounding the rights afforded to couples as well as the terms used to describe the unions.

The LGBTQIA+ community and its supporters have largely welcomed the stance taken by the Thai government, especially given the current lack of recognition same-sex couples face under Thai law, which at best creates significant inconveniences and at worst leaves them open to discrimination and mistreatment.

However, as with all landmark decisions, it is important to look beyond the initial euphoria and thoroughly understand the elements and potential implications of the changes to be introduced. This is particularly so given that the four bills, each proposing different approaches to the question of same-sex partnerships, confer different rights and obligations depending on which piece of legislation will pass the second reading.

Many in the LGBTQIA+ community have criticised the creation of some of the bills, stating that marriage should be equally accessible to all regardless of gender and that such bills relegate same-sex partnerships as a separate union that is not seen in equal measure to opposite-sex marriage.

As previously mentioned, four bills cover same-sex partnerships: the ‘Civil and Commercial Code Amendment Bill’ proposed by the Move Forward Party; the ‘Civil and Commercial Code Amendment Bill’ proposed by the Cabinet; the ‘Life Partnership Bill’ proposed by the Democrat Party; and the ‘Life Partnership Bill’ proposed by the Cabinet. It should be noted that while all four bills have passed the first reading in parliament, they will still undergo a second reading and may be subject to further changes. It is also likely that these bills will be combined to create a consolidated piece of legislation.

The Life Partnership Bill
(Cabinet)

The Life Partnership Bill proposed by the Cabinet essentially creates a separate type of union between two people called life partners who will be allowed to register their partnership and obtain legal recognition if the bill is put in place. Given that the current iteration of the Civil and Commercial Code grants rights and obligations only to opposite-sex couples, the Life Partnership Bill proposed by the Cabinet aims to extend these to couples of the same sex, though falling short of extending the term “marriage” and “spouses”. It is also worth noting that this Life Partnership Bill works in tandem with the Civil and Commercial Code Amendment that was also endorsed by the Cabinet, and changes proposed by the latter are reflected by the provisions of the former.

Based on its current draft, many of the rights and obligations to be provided to same-sex life partners are similar to those granted to married opposite-sex couples under the Civil and Commercial Code. The minimum age to register a life partnership under the Life Partnership Bill will be 17 years of age, and at least one of the life partners must be a Thai national as two foreigners will not be allowed to register their life partnership in Thailand. The Life Partnership Bill also sets out the same prohibitions laid out by the Civil and Commercial Code, namely:

  • Partnerships with a person considered to be mentally incapacitated or declared by Thailand’s courts as incompetent;
  • Partnerships between blood relatives; and
  • Bigamy or polygamy.

The prohibition on bigamy and polygamy, under Sections 3 and 4 of the Cabinet-proposed Amendment to the Civil and Commercial Code Act, will extend the prohibition to those who are already under a registered marriage or a life partnership.

Much like what is currently stipulated under the Civil and Commercial Code, Sections 11 and 13 of the Life Partnership Bill also state that the registration of a partnership must be done with the consent of both partners, and any partnership registered under duress will be rendered void. Moreover, as with the Civil and Commercial Code, partnerships will be nullified if it is found that the partners do not live together, or the purpose of their partnership is to misuse the benefits and welfare given by the state.

Concerning managing properties, the Life Partnership Bill also draws from what is already set out in the Civil and Commercial Code, namely the distinction between personal property and conjugal property. The former consists of assets that are owned and managed individually by one partner who can sell, dispose of, or use them as they please, while the latter is concerned with assets that must be jointly managed by the partners.

However, the Life Partnership Bill does not provide specific details regarding consent if the other partner conducts a legal act that affects conjugal property, though it can be assumed under Section 15 of the bill that the principles applied by the Civil and Commercial Code to opposite-sex couples will be applied. This means that any legal act conducted by a partner concerning conjugal property must be done with the consent of the other partner.

The Life Partnership Bill also extends the right to adopt children, inherit the properties of deceased partners, and terminate the partnership upon written notice to the court on reasonable grounds. It also grants partners of the same sex the power to act on behalf of their partners’ behalf during criminal cases where they are the victim, as well as to prosecute on their deceased partner’s behalf as indicated under the Criminal Procedure Code.

Other proposed amendments to the Civil and Commercial Code include the following:

Original
Civil and Commercial Code
Amendment to Civil and Commercial Code Bill (Cabinet) Rationale
 
Section 1452 “A marriage cannot take place, if the man or woman is already the spouse of another person.”
 
Section 3 to cancel the section 1452 of the Civil and Commercial Code and Instead, use the following
“A marriage cannot take place if the man or woman is already a spouse or a life partner of another person.”
 
 
 
Adding the reason that the marriage registration will be null and void in the case that a married person registers marriage when they already have registered Life partnership
 
Section 1516 “Grounds of action for divorce are as follows:
 
(1)   the husband or wife has given maintenance to or honoured such other person as his/her spouse, or has committed adultery, the other spouse may enter a claim for divorce;
…”
 
 
Section 4 to cancel (1) section 1516 Civil and Commercial Code which was amended by the Amending the Civil and Commercial Code Act, No. 16, B.E. 2550 and instead, use the following
“ (1) the husband or wife has given maintenance to or honoured such other person as his spouse or life partner, or has committed adultery, or acts against others or accepting the actions of others to satisfy one’s own or another’s lustregularly, the other spouse may enter a claim for divorce;
…”
 
Adding the grounds for divorce to include cases where the husband or wife is in a relationship with a person of the same sex as well, such as recognizing another as a partneror acting against others or accepting the actions of others to satisfy one’s own or another’s lust regularly.
 
 
 
Section 1528 “If the party receiving  alimony remarries, the right to receive alimony is extinguished.”
 
Section 5 to cancel section 1528 of the Civil and Commercial Code and instead, use the following
“Section 1528  If the party receiving alimony remarries or registers as a life partner, the right to receive alimony is extinguished.”
 
 
Adding reasons that cause the right to receive a living allowance expired if the spouse who receives the living allowance is registered as a life partner because once the life partner is registered, it has the right to be supported by the other spouse. as in the case of new marriages

 

The Life Partnership Bill
(Democrat Party)

Interestingly, an alternate version of the Life Partnership Bill was proposed by the Democrat Party which, in principle, bears similarities to the above-mentioned Life Partnership Bill endorsed by the Cabinet, albeit with a different definition for life partnership. While the Cabinet-proposed bill defines life partnership as “two persons of same-sex who register as life partners under this Act”, the bill proposed by the Democrat Party defines life partnership as registered partners consisting of either “two Thai persons” or “at least one Thai”.

Concerning the rights and obligations afforded to same-sex couples, those under the Life Partnership Bill endorsed by the Democrat Party are largely identical to the ones proposed by the bill endorsed by the Cabinet, with differences primarily focused on terminologies and orders. As mentioned before, the principles outlined by both bills are largely the same.

The Civil and Commercial Code Amendment
(Move Forward Party)

As with the Life Partnership Bill, the amendments proposed by the Move Forward Party aim to extend marital rights and obligations provided by the Civil and Commercial Code to same-sex couples, arguing that its current version, which limits such rights only to opposite-sex couples, is unconstitutional on the grounds of unfair gender discrimination.

Again, many of the provisions underlined in these amendments align with the principles provided by the two Life Partnership Bills, particularly around the fact that at least one of the partners must be a Thai national, and that consent must be obtained from the parties to register the marriage. It also bears similar provisions regarding prohibitions, the management of assets between partners, the adoption of children, inheritance, the right to terminate the partnership, as well as the power to prosecute or legally act on behalf of the partner.

Nonetheless, the amendments proposed by the Move Forward Party also bear significant differences from those mentioned earlier. Among these is the move to revise the minimum age of marriage from 17 years old to 18 years old regardless of whether the individuals in question are of the opposite sex or the same sex. On top of equalising the minimum age for all genders, proponents of the proposed amendments also aim to align the Civil and Commercial Code with the Convention on the Rights of the Child, which defines children as those below 18 years of age. It also aims to change the definition of marriage from that between a “male and female” to two “persons”, which many have lauded as the fairest way to extend legal rights and recognition to same-sex couples.

Another noteworthy distinction these amendments have to the other bills is their intention to change the definition of married couples from that between a man and woman to two persons regardless of their gender, gender identity or sexual orientation. The rationale behind this proposed change is to ensure that all benefits, rights and obligations applied to married couples also apply to same-sex couples. If passed, the proposal may mean the following for same-sex couples:

  • Same-sex couples will pay a registration fee at the same rate as an opposite-sex couple;
  • A surviving same-sex spouse will be exempted from inheritance tax under the Inheritance Tax Act;
  • A same-sex spouse will be entitled to certain income tax write-offs or deductibles given to an opposite-sex spouse under the Revenue Code;
  • A same-sex spouse will be entitled to receive welfare benefits enjoyed by an opposite-sex spouse under the Social Security Act and other legislations giving employment benefits to spouses of government officers;
  • Same-sex couples will be entitled to be the lawful parent of a child born out of gestational surrogacy under the Protection of Children Born by Medically Assisted Reproductive Technology Act;
  • A same-sex spouse will be entitled to use the surname of their legally registered partner; and
  • A same-sex spouse will be entitled to apply for naturalisation as a result of marriage to a Thai national under the Nationality Act.

Concluding notes

While the principles introduced by the aforementioned bills are clear, several questions remain regarding the details of the proposed life partnership, including issues surrounding whether a foreign partner would be entitled to a stay visa, whether same-sex partnerships registered outside Thailand would be recognised within the country regardless of their nationality, as well as conjugal tax obligations and probate issues. It also calls into question the relevant procedures if the partners decide to terminate their partnership, particularly around child custody and alimony, as well as the government fees involved to facilitate such procedures.

Moreover, it should be pointed out that some of the terms used in some of the bills to refer to same-sex couples, notably in the two Life Partnership Bills, still bear discrimination as they essentially create a separate partnership class that, while similar, do not truly measure to the same status as married opposite-sex couples, particularly around the issue of rights and obligations. Many critics from the LGBTQIA+ community have pointed out that if regulators decide to use the terms underlined by the two Life Partnership Bills, it would be contrary to their purported intention of providing equal rights to same-sex couples as doing so would not only deny them the right to marriage and the entitlements and obligations associated with it, but it would also limit their relationship to a term deemed by many as a compromise to religious and conservative bodies.

Another problematic issue is the higher government fees associated with registering a life partnership. For example, under the Life Partnership Bill endorsed by the Cabinet, if same-sex couples seek to register their partnership with the registrar, it will cost a maximum fee of B1,000 on top of B1,000 per person for miscellaneous fees incurred by the officer, while married opposite-sex couples only need to pay a fee of B200 per person. Also, the maximum registration fee for same-sex couples during a mass “wedding” event organised by local authorities amounts to B500 per person compared to B20 per person for opposite-sex couples. Moreover, each copy of the life partnership certificate will cost same-sex couples B100 each compared with B10 for opposite-sex couples. Proponents of this Life Partnership Bill have yet to provide a rationale for this discrepancy in fees.

If, on the other hand, regulators ultimately decide to proceed with the amendments proposed by the Move Forward Party, it is likely that the benefits afforded to married opposite-sex couples, as well as the possibility of becoming married couples, will also apply to same-sex partners. However, whether this will be applied in principle remains to be seen.

Will the move by the Thai government be seen as a source of pride for the country or another underhanded act of prejudice? This remains to be seen as the bills undergo further reading and possible consolidation.

Nonetheless, the initial passing of these bills shows that there is light at the end of the tunnel. However, the journey towards full equality for LGBTQIA+ people is just beginning.

By Jak Chokesikarin
Associate, Silk Legal


People are welcome to contact Silk Legal for more information. Please reach out to them at info@silklegal.com or by using the contact form on their website.

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