Strengthening Fairness and Protection of Right of Persons concerning a Divorce by Mutual Consent: A Study of Thai and French Laws

Abstract

Even though the Thai law has long recognized the concept of divorce by mutual consent, the law barely specifies any detail and largely provides the separating couple with immense freedom about the consequence of the divorce. No measure has been prescribed to examine whether decisions are made freely. Also, vulnerable members of the family are left without protection; therefore, it is possible that a disadvantaged spouse might concur with the divorce agreement without fully understand the consequence. It is also possible that according to the Thai law the parents can dissolve the marriage without consulting with their minor children. These issues raise queries about whether the Thai law concerning divorce by mutual consent has constituted fairness to the divorcing couple and anyone related to the marriage, especially a minor, or not. In this article, the author studies the French law on this issue which has just been enforced in the beginning of 2017 to explore if there is a possibility to fix the problem of fairness and rights protection with regard to the divorce by mutual consent. The new French law has no longer required that the divorce must be permitted by the court; however, it provides more definite and clearer conditions of divorce to ensure that the separating couple will understand the consequence. Furthermore, the new law requires that the spouses must consult with their children on the divorce matter. The author sees this measure as an interesting idea to amend and develop the Thai law.