Conflict between the Notion of Equality and the Thai Custom: Problems of Provisions on Betrothal under the Marriage Equality Law

Abstract

The right of same-sex couples to marry is legally recognised in the Civil and Commercial Code Amendment Act (No. 24) B.E. 2567 (Marriage Equality Law). To be consistent with the purpose of the Marriage Equality Law in promoting gender equality, this right includes the right to betrothal, i.e., two persons can be betrothed, regardless of their gender. However, the fact that the Thai law on betrothal relies heavily on custom results in betrothed couples having different roles and duties. Traditionally, a betrothed man, as the person proposing the betrothal, agrees with a woman, as the person receiving the betrothal, that he will marry her. An important aspect is that the former has a role in delivering the betrothed property to the latter. Therefore, the abolition of the gender requirement of betrothal is challenging and leads to some interesting questions. For instance, if a woman could act as the person who is proposing the betrothal by delivering the betrothed property to a man would be questionable. For another example, in the case of same-sex betrothal, it is questionable which party will act as the person proposing and receiving the betrothal. Therefore, this article aims to address the problems with the rules on betrothal under the Marriage Equality Law, caused by the Thai customary law on betrothal, in which the roles, rights and responsibilities of each betrothed party are different. The foreign laws on betrothal will also be analysed in order to find an appropriate approach to interpret the provisions regarding betrothal under the Marriage Equality Law, and to introduce a way to make the Thai law on betrothal consistent with the notion of equality.