A major obstacle for many foreigners looking to start a business in Thailand is the generally arduous procedure of obtaining a work permit and a non-immigrant type B visa and the laborious requirements of reporting and maintenance. With the SMART visa program, this process has been greatly simplified for qualified individuals.
Continue reading “Thailand’s SMART Visa program: What you should know”
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Divorces in Thailand or anywhere in the world for that matter are rarely an easy process. Even if both spouses want an “amicable” end to their marriage, there is still a chance of conflict that, if not handled well, may ultimately lead to court proceedings. GPS Legal offers collaborative divorce participation agreements (CDPAs) as a path to a less confrontational, thoroughly negotiated divorce agreement that benefits both spouses and their families and provides a built-in disincentive to proceed to court where a judge decides the outcome.
You and your spouse may want to pursue an amicable divorce settlement, assuming, wherein you both agree to split without any bad feelings, that this goodwill will continue. However, splitting up is usually sensitive and emotional, and there is always a chance that the stark realities of the process may break down, turning confrontational instead of cooperative. A Collaborative Divorce Participation Agreement (CDPA) offers an alternative to traditional divorce proceedings. A CDPA turns a potentially confrontational and litigious dispute into a more measured, mediated negotiation.
Where a collaborative divorce is different than a standard mediation is that a CDPA sets strict ground rules for the divorce negotiations to continue. Both sides agree to discuss all issues raised by either party in good faith, sharing all relevant information freely. A CDPA may include financial and childcare experts as well as attorneys to assist when discussing specific matters such as assets or visitation arrangements.
Most importantly, a CDPA legally binds all parties to agree on divorce terms without going to court. If either party terminates the CDPA for any reason, the lawyers, and possibly any other experts and advisors utilized up to that point, are contractually obligated to recuse themselves from any further proceedings including those at court. This means that new lawyers and advisors must be hired and the whole process starts over from scratch. Lost time, goodwill and money can be motivation enough to keep everyone involved dedicated to mutually beneficial result.
The potential financial and time loss is a major incentive, but a collaborative divorce participation agreement offers a lot of flexibility and opportunities. Since both sides will lose their advisors, the threat of going to court can ring hollow for everyone. Because these are contractual negotiations, you can be more creative about terms and concessions. And since both spouses are fully involved in the process, they are more likely to follow the terms and conditions of the resulting agreement. Once the courts take over without the benefit of an out-of-court settlement, you are bound by the judge’s decisions, who will rely entirely on the law than necessarily your best interests.
Going the CDPA route still requires legal representation, but since the goal is an agreement, the lawyers should be less adversarial, avoiding more stress than necessary during this trying time. This is important, especially if there are children involved.
Nevertheless, CDPAs are not for everyone. If there is any conflict or power plays by either spouse, this can doom the negotiations from the start. Also, while this may be a smoother process, it is not always the fastest. A CDPA helps guarantee full cooperation, but even with everyone providing complete disclosure and transparency, it may take a while to reach an agreement.
As mentioned in another article, contracts between married couples can present problems. Under Thai law, if a married couple enters a contract, either spouse can unilaterally void that contract during the marriage including up to one year after the marriage ends.
So how would a collaborative divorce participation agreement work in Thailand? Importantly, it is the lawyers and other advisors who are party to the agreement that are bound to its terms. Therefore, if you or your spouse pulls out of the CDPA, it triggers the termination of the entire agreement and all the advisors involved must dissolve their relationships with you both. However, you must still pay them for their participation. And then you need to hire new representation and consultation.
GPS Legal will advocate fully for your best interests throughout your divorce proceedings. If you choose to enter into a collaborative divorce, we have the negotiation experience necessary to ensure you get the greatest benefit without having to endear a lengthy court process. Find out more about how we can help you with your divorce. Contact us for a consultation today.
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Foreigners who want to make a home in Thailand generally may not be able to buy land, but they can purchase a condominium as long as they meet certain criteria. The requirements are not that arduous, although there is some confusion regarding the source of funds. This article will shed some light on the process and requirements for buying a condo in Thailand.
(Note: this article discusses purchases by private individuals, not juristic persons or corporate entities.)
Under the Condominium Act of 1979 (amended in 2008), there are five categories of “aliens” that can own a condominium in Thailand. The three that reference foreign individuals are:
In simple English, for buying a condo in Thailand, you must either a) hold a permanent resident permit or, b) work for a BOI company and hold a valid work permit/visa, or c) intend to legally bring in or have brought in foreign currency into the country to be used for the purchase of a condo (and properly notated as such).
This is important because in order to register ownership with the Land Department in your name, you will have to provide proof of your status under a, b, or c.
A foreigner can buy into any condominium project anywhere in the Kingdom, as long as foreign ownership does not exceed 49% of the total space available for sale. The condominium project or juristic person will have to provide documentation certifying this to be submitted to the Land Department. It is the developer or juristic person management company’s responsibility to ensure the ratio is maintained, but you should have your attorney check as part of the due diligence process to ensure that your purchase is legitimate under Thai law.
We typically find that there is a misunderstanding of the statute when it comes to payment for buying a condo in Thailand. Many banks and realtors will insist that all foreigners must bring money in from overseas to purchase a condominium unit. As this article points out, this is not the case, however there are only two very narrow categories where a buyer does not have to do this.
Unfortunately, if you are not a permanent resident or are not validly working for a BOI company, you may have to transfer locally parked funds out of Thailand and back in again to receive a Foreign Exchange Transaction (FET) letter from the bank. If the account is held by an overseas individual or is a foreign currency-based deposit, the bank may issue the letter based on the fact these funds originated overseas. Regardless, you need this letter when registering your purchase with the Land Department.
Please note: There are rare cases where individuals working in Thailand and living here on a long-term, non-immigrant visa with a work permit can pay with funds earned in Thailand. However, the bank where the funds are deposited must be willing to issue a confirmation letter of the source of these earnings and the Land Department in question must be willing to accept this letter in lieu of an FET. This is by no means a guaranteed outcome as it requires both the Land Department and the Thai bank to be amenable to this option.
GPS Legal has years of experience assisting in real estate transactions, both commercial and residential, all over Thailand. If you’re condo hunting and think you’ve found the perfect place, but now need help navigating the purchase process, contact us today for a consultation.
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Australian citizens and business entities may find an easier path to doing business in Thailand through the Thailand-Australia Free Trade Agreement (TAFTA). While TAFTA has more restrictions than the US-Thai Treaty of Amity, it does allow the establishment of majority Australian-owned companies, under certain conditions.
The Thailand-Australia Free Trade Agreement has been in force since 2005. TAFTA relaxes and, in many cases, eliminates tariffs and quotas between Thailand and Australia. It also provides special privileges to Australian investors in Thailand. For the purposes of this article, we will focus on doing business in Thailand.
Most other majority-foreign owned businesses must comply with the Foreign Business Act (FBA). The FBA limits foreign companies as to what types of businesses they can operate, either prohibiting out right or requiring a Foreign Business License (FBL). Companies applying for an FBL will find themselves under a great deal of scrutiny, with a risk of the Department of Business Development (DBD) denying their application.
However, the DBD will be more likely to approve an Australian company applying for a Foreign Business Certificate (FBC) under TAFTA. The main caveat would be the restrictions depending on the sector (please see following section on criteria).
Unlike the Thai-US Amity Treaty, which allows 100% US ownership, TAFTA only allows 100% Australian ownership in two sectors. The others are mainly limited to 60% majority Australian ownership.
A 100% fully Australian-owned company in those sectors are possible, but not under TAFTA. This would require applying for an FBL under greater scrutiny by the DBD as mentioned above.
As of the publication of this article, businesses can apply for an FBC under TAFTA if they plan to operate in the following sectors:
| Eligible businesses sectors |
Requirements |
Maximum Australian shareholding |
| Mining, on land or underwater (not including operations using individual manual labor) |
|
60 % |
| Construction of public utilities or transportation that requires special equipment, machinery, technology, or expertise |
|
100 % |
| Luxury hotel or resort services, including hotel management |
|
60 % |
| Full restaurant services |
|
60 % |
| General management consulting only for a Regional Operating Headquarters (ROH), ROH’s associated company, or foreign branch |
|
100 % |
| Convention services, not including F&B services |
|
60 % |
| International exhibition center and services |
|
60 % |
| Wholesale and retail services supporting a TAFTA registered company’s manufactured products |
|
100% |
| Post-secondary science and technology educational institute |
|
60 % |
| Theme park or zoo |
|
60 % |
| Aquatic animal park |
|
60 %
|
| Maritime support services (pier and anchorage for tourism-related transport) |
|
60 %
|
To be able to apply for an FBC under TAFTA, your company must meet the following criteria:
TAFTA companies must follow capital restrictions under the FBA as well as those specified in the Sectors covered by TAFTA section. Otherwise, the basic minimum capital needed is THB 2 million.
The process for receiving an FBC under TAFTA usually takes around 60 days from start to finish. This is much shorter than applying for an FBL, which can take up to six months or longer. GPS Legal is happy to discuss your options for establishing a business in Thailand, whether through TAFTA or other structures. Contact us today for a consultation.
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United States citizens seeking to do business in Thailand have had special privileges available to them since 1833. The Treaty of Amity allows US nationals, as individuals or as businesses, to establish a 100% foreign-owned company with the same legal status as a local Thai entity, with very few restrictions.
The Treaty of Amity and Economic Relations between the United States of America and the Kingdom of Thailand (the Treaty of Amity) was signed almost 200 years ago and reaffirmed on May 29, 1966. Under the treaty, US citizens and businesses can wholly own their businesses incorporated in Thailand. Furthermore, these businesses are treated as a Thai-owned business under most circumstances.
Foreign-owned businesses in Thailand must comply with the Foreign Business Act (FBA). The FBA prohibits foreign businesses from certain business sectors and requires a Foreign Business License (FBL) for others. There are also different minimum capital requirements for foreign-owned businesses. Treaty of Amity companies go through a simplified and more streamlined process, receiving a Foreign Business Certificate from the Ministry certifying their status to operate in Thailand.
Treaty of Amity companies receive preferential treatment compared to other foreign businesses, but there are certain constraints. While Treaty of Amity companies are exempt from the standard FBL industry restrictions, there are six sectors that Amity companies are prohibited from operating in:
Although Amity companies technically have the same status as majority Thai-owned companies, they cannot own land. And like all companies, they must comply with work permit rules.
To qualify for an FBC under the US-Thai Treaty of Amity, you must fulfil the following nationality and minimum capital requirements:
A natural person who is a US citizen either by birth or naturalization.
OR
If the Amity company plans to operate in one of FBA’s restricted industries (and not one of the six sectors listed above), the minimum capital required is Baht 3 million. Otherwise, the minimum capital requirement is Baht 2 million.
If a US citizen or business uses revenue from an already established Amity company or Thai business to establish a new Amity company, these minimums do not apply. However, statutory minimums still apply, and regulators retain their ordinary discretion in both cases, as it would apply to a Thai company.
An additional perk for Amity companies is that under Ministerial Regulation “Minimum Capital and the Period to Bring or Remit Minimum Capital to Thailand B.E. 2562 (2019),” they have until August 29, 2029, to pay up their minimum capital.
Establishing a company under the US-Thai Treaty of Amity is a quick, streamlined process. For those that qualify, the application process takes around 90 days from preparation to approval. This is fast compared to the FBL process, which takes at least four to six months, often longer. GPS Legal has experience in applying for Treaty of Amity status and for FBLs. If you are not sure what is the best course of action is for you, contact us today for a consultation.
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Thailand is growing in popularity as a destination for expats to call their new home. However, many foreigners believe they must be employed with a work permit, marry a Thai, or wait until they are 50 years old to apply for a retirement visa, or otherwise risk being denied entry by immigration officials by making multiple visa runs across the border. In fact, there are other options for those with reasonable means. While not a solution for everyone, investment visas are available to those who have five, ten, twenty, or forty million baht in qualified investments in Thailand.
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No one ever expects they will get divorced, be it in Thailand or anywhere else in the world. But “life happens” and relationships do sometimes change to a point where a marriage can no longer be salvaged. If this happens, it is important to know what rights you have and what actions you can take. This is an overview of how divorce in Thailand is handled.
If you were married in Thailand and registered your marriage at a local District Office, then you can get divorced in Thailand. This applies whether you or your spouse is a Thai citizen or a foreigner. If all aspects surrounding your decision to end your marriage are amicable and agreed, it is a fairly simple and straightforward process to register such an uncontested divorce, including the terms of the divorce, by filing the relevant paperwork at the District Office where you were married. If, however, there is a dispute, you will have to file for divorce at Family Court where you will be given the opportunity to undergo a mediation, and ultimately, if the parties are still unable to resolve their differences, the court will issue its judgement, including setting the terms of the divorce.
If your marriage is registered in another country, you may still be able to get divorced in Thailand. In order to do so, the country where you were married must recognize divorces (there are countries, like the Philippines, that do not), and at least one spouse must be a legal resident in Thailand. As a foreigner, that means living in Thailand on a valid, non-immigrant (not tourist) visa or having permanent resident status. Normally in this case, regardless of whether your divorce is consensual or contested, you would have to file your divorce with the Family Court in Thailand.
A word of caution: Some “experts” advise married couples registered in another country to register their marriage in Thailand. The idea is to then divorce at the District Office and avoid going to Family Court. This misplaced advice is arguably risky for all parties involved. Some countries may not recognize a “District Office” divorce in instances where the marriage was not originally registered in Thailand. GPS Legal does not recommend this practice.
You and your spouse may agree that a divorce is necessary and even agree that you want to avoid going to court. Because by going to court, you both give up a good deal of control over the outcome. Even with that said, it doesn’t necessarily mean you both agree on how to resolve all the various issues in a divorce. As an alternative to court, you may wish to consider a Collaborative Divorce Participation Agreement (CDPA), a dispute resolution method that includes a strong, built-in incentive to compromise and find terms that you both can live with.
Simply put, you and your lawyer, along with your spouse and his/her lawyer, agree to disclose all relevant information (finances, etc.), to listen to each other’s demands and concerns, and to negotiate in good faith until you reach a mutually agreed upon settlement. How is this different from agreeing to a regular mediation or settlement negotiation? With a CDPA, you’re both contractually obligated to take part in a cooperative, non-combative process to avoid going to court.
The incentive of a CDPA is that ultimately, if you are unable to come to an agreement and either side elects instead to go to court, both attorneys must withdraw. You may no longer use those lawyers that have been representing you through the collaboration process. Why is this important? You both will have to start from scratch with new attorneys, which means a longer process and, more than likely, even more legal fees.
Whether or not your marriage is registered in Thailand, there are other options available before legally terminating your relationship. You may wish to consider a separation agreement or a post-nuptial contract to set boundaries, rights, and obligations or pre agree on how to later dissolve the marriage if it comes to that. If you have children, there are custody and co-parenting agreements you can put in place. Having a written contract or agreement may not be romantic, but it worth considering as an alternative if both sides wish to try and avoid divorce or the nastiness that can often accompany it.
If your marriage is registered in Thailand, these contracts are available, but with a caveat. Thai law gives marriage special status, especially when it comes to contracts. Section 1469 of Thailand’s Civil and Commercial Code allows either spouse to void any contract between a married couple at any time and without having to give a reason. So, if you and your spouse sign a co-parenting agreement while you’re married, either of you can legally tear it up without cause. And you will have no grounds to contest your spouse’s action. Furthermore, if you enter into these agreements while you are married then get a divorce, you and your now ex-spouse can still void those contracts up to one year after the divorce. There are exceptions to this, for instance pursuing a court-ordered separation, or where a contract is governed and interpreted by jurisdictions other than Thailand, provided you are willing to seek enforcement in those jurisdictions.
We know that ending a marriage can be difficult even when both sides agree to do so. And when the couple are not in agreement regarding sensitive issues of child custody, the division of marital assets, or even the divorce itself, it can make a difficult experience traumatic, particularly if you are not in your home country. GPS Legal has assisted many spouses and partners handle their marriage, divorce, and custody matters successfully.
If you are concerned about your marriage or family welfare and would like to find out what you can do, contact GPS Legal today for a confidential consultation. We will explain your options very clearly and carefully so that you can make an informed decision.
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As the Thai government slowly lifts COVID-19 lockdown and travel restrictions, businesses must now face the challenges of operating in this new environment. Changes are confronting everyone, and businesses in every industry must adapt. In Thailand, there is some financial help available as companies feel the impact from COVID-19. We at GPS Legal have compiled an overview of the current programs in place.
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Retiring in Thailand is a great idea. Low cost of living, fantastic beaches, lovely countryside, along with all modern amenities and services, including world-class medical care. The Thai government welcomes retirees from other countries with retirement visas and other long-stay visa options.
Continue reading “Retiring in Thailand: What are your options?”
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Since posting a warning in September 2019 on Facebook and LinkedIn about this business security license scam, we’ve received a steady flow of inquiries about obtaining a “business project security license” or “project registration certificate”. We would like to reiterate that there is no such license requirement under Thai law.
Apparently, “Thai investors” approach businesses overseas offering to make a sizeable investment. But they claim that the overseas business needed a “business project security license”, or something similar, to be approved to receive the funds. Of course, it costs thousands of dollars, and the Thai investors will put them in touch with a contact. There is no “business project security license” or “foreign investment authorization certificate” or “foreign investment approval license” or “project registration certificate” .
There are laws regulating money transfers from accounts in Thailand to overseas recipients, but that process is between the Thai account holder, their financial institution, and the Bank of Thailand. For certain transactions, there may be KYC checks, but again, that is not the overseas business’s obligation.
If you are approached by a potential investor who demands any of these licenses mentioned above, a scam may be afoot. Another red flag is if they require any license or documentation that costs a hefty sum. We urge you to contact local authorities in your country or Thailand’s Anti Money Laundering Office (AMLO) or Technology Crime Suppression Division. Or, let GPS Legal assist. We can help you with reporting any potential fraud to the proper authorities, or we can conduct thorough due diligence if you believe that the parties are well-intentioned but perhaps mis-informed about these licenses. Contact GPS Legal today to discuss the various options available to you.
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