INTRODUCTION

          In society, many people have a couple after that they get married and maybe have their children when they got marriage certificate, they will have many rights and duties following the Thailand Civil and Commercial Code or other law such as section 1461 of the Thailand Civil and Commercial Code was legislated that husband and wife shall maintain and support each other according to his or her ability and condition in life. It indicates that husband and wife have their duty to take care together as much as they can do on ability and condition in life and section 1635 spouse has the right to get the legacy of husband or wife.

          Consequently, It shows that men and women are married. Their relationship is ensured in law. They have rights fairly in family life accordingly they can indict their husband or wife if the spouse does not act following the law but the same-sex couple can not register a marriage certificate. Their relationship is not authenticated by law. So they can not have rights and duties in accordance with the law. Then it is not equal to them. They can not appeal to their lover if their lover makes something that is not inappropriate to them. They are a couple like a heterosexual couple. They have love, feelings like them, and they want to have rights in family life and are approved by law as well. Therefore, family law in Thailand is quite outdated since the present society has changed. Nowadays, society has complex relationships. They love and ally without gender. And the same-sex couple who ready to make a good family. They should be acknowledged by law as heterosexual couples.

          Therefore, people in society discuss same-sex marriage in order to help same-sex couples as equal as heterosexual couples and also develop the law. Same-sex marriage has advantages to same-sex marriage such as rights and duties in engagement, adoption, funeral arrangement, criminal prosecution, consent to medical treatment, applying for a travel visa as a spouse, managing assets together, etc. They are normal rights that same-sex marriage should get them as heterosexual couples.

THAI MARRIAGE LAW AND MOVEMENTS

          Thai marriage law is prescribed in the Thailand Civil and Commercial Code Section 1448 “A marriage can take place only when the man and woman have completed their seventeenth year of age. But the Court may, in case of having appropriate reason, allow them to marry before attaining such age.” Obviously, they use the terms “man” and “woman”. Therefore, same-sex marriage (not man and woman getting married) is not legally binding (there are no such relations in a legal aspect)

          Basically, if the man marries the woman, there is a legal binding including family and marriage fundamental rights e.g. rights in inheritance, rights in giving consent for the spouse to take a treatment, or even the criminal mitigating circumstance in an offense of stealing their spouse’s property (Thailand Criminal Code Section 71)

          Nowadays, most people started to be aware of equality and their rights. They believed that people should not be discriminated against because of their unique gender including the right to get married and start their own family even they are not the “man” or the “woman”. Since Thai marriage law permits only the man and woman to take place on marriage and shut the door for LGBTQ+ to get married legally, it seems to be discrimination. Therefore, many people in Thailand are demanding same-sex marriage for such a long time. Recently, it has been a controversy for amending the marriage law in Thailand so that LGBTQ+ could marry as the same as the man and woman. There are two ways including amending the Thailand Civil and Commercial Code under the marriage substance and legislating the Civil Partnership Act. However, there are many people who protest the Civil Partnership Act because it still seems to be discrimination. According to the Civil Partnership Act, the rights that women and men have given from the Thailand Civil and Commercial Code, LGBTQ+ has not been given from the Civil Partnership Act. Moreover, since we truly want to provide equality for the citizens, we should not just legislate the Act instead of amending the Code. Therefore, even the government tried to interminate the controversy about same-sex marriage but still, many people are protest for their true rights in building family and getting married.

          On 17 February 2022, a group of people filed a complaint against the Thailand Constitutional Court about the contrary of Section 1448 of the Thailand Civil and Commercial Code and The Constitution of Thailand, since Section 1448 of Thailand Civil and Commercial Code prescribed that only the man and woman could marry. On the other hand, the Constitution of Thailand permits human rights and the equality of the citizens. Therefore, it seems to be a conflict that the Thailand Constitutional Court needs to consider. However, the court considered that Section 1448 of the Thailand Civil and Commercial Code could not be declined since it is not in conflict with the Constitution of Thailand. With this judgment, there are many people talking about this controversy widely in Thailand.

OTHER COUNTRIES’ SAME-SEX MARRIAGE LAW

     For same-sex marriage, there has been no attempt to mobilize only in Thailand but in many countries around the world paid attention to these laws as well. For example, in France there was a marriage between two men at the end the marriage was objected to and became void. As such, there has been a struggle for change. It took France 14 years for that transition from civil partnership law (Pacte civil de solidarité: PACs) to an eventual change in French civil law.

           The High Court of Canada ruled inMay 1999 that the definition of "spouse" was to be an intimate relationship of the opposite sex only. It is unfair to same-sex couples. This ruling stems from the incident between a woman and a woman in which the other party has to go broke when deciding to separate. The court, therefore, contradicted the definition of Excluding same-sex couples from family law spouses.

           It creates the misconception that same-sex relationships are not accepted or less valuable than heterosexual individuals. As for allowing same-sex marriage in Canada, it first occurred in 2003 in Ontario. And finally, in 2005, Canada passed the Civil Marriage Act, certifying the right to marry for both heterosexual and same-sex people. This law is common national law. In the marriage ceremony, spouses can choose to perform both religious and official ceremonies.

WHICH DIRECTION SHOULD THAI LAW TAKE IN RESPONSE TO SAME-SEX MARRIAGE?

From an Author's perspective, We definitely support the idea that we have to amend our Civil Code about marriage as soon as possible. Because we think that it would be much easier than publishing newer acts such as Civil Partnership Act. like we are currently doing. Since we can just change some words from the legal provision from men-woman to LGBTQ+ related words. And if we can do that, You can see that there's no problem about those rights which benefits those people who are married and registered in a process of law.

But we can't forget that the LQBTQ+ community is quite a new chapter of humanity. So it is understandable that there are some people who will not comfortable with this. This is the problem that we think appears in Thailand and also all around the world too. From this, some countries are faces backlash from arguing about LGBTQ+ - related law. So, some people come up with an idea that instead, we change all of the laws. They suggest that we should do something like an “Act” first to test the water. Which, as well works in so many countries. Then, Our lovely country “Thailand” which seems like a conservative-ish country? Think that would work too. So, those ideas were imported to Thailand.

Like we said before, some people might think that Civil Partnership Act was bad. But there is an actual reason behind it. Which we can’t deny that it is actually a good reason. Owning to the fact that we are democracy country that respects all of the diversity and thoughts. And we think that this is not the best way that we can legalize same-sex marriage because there are too many rights still missing compared to regular marriage. But it definitely has some meaning in Thailand's LGBTQ+ history. Right now, what we can do is to make people understand and respect the LGBTQ+ community. We, Authors, believe that one day Thailand will also achieve the goals that to amend our civil code to fully support same-sex marriage and simultaneously gain every right that a heterosexual spouse have.

CITATIONS

Thailand criminal code B.E. 2499

Constitution of the Kingdom of Thailand B.E. 2560

ฉัตรชัย เอกราช, 'ถอดคำวินิจฉัยศาลรัฐธรรมนูญกรณี#สมรสเท่าเทียม จุดเปลี่ยนของการเรียกร้องสิทธิ LGBTQ ในไทย' (The Standard, 4 ธันวาคม 2564) <https://thestandard.co/constitutional-court-ruling-in-the-case-equal-marriage/> สืบค้นเมื่อ 11 กุมภาพันธ์ 2565.

ชวินโรจน์ ธีรพัชรพร, 'พ.ร.บ.คู่ชีวิต ร่างที่ 3 ความเสมอภาคที่ไม่มีอยู่จริงของ LGBTI ไทย' (The Standard, 6 พฤศจิกายน 2561) <https://thestandard.co/civil-partnership-bill-draft-3/> สืบค้นเมื่อ 11 กุมภาพันธ์ 2565.

Photo by Maico Pereira, on Unsplash

CONTRIBUTORS

Nanchanat      Tangpawana

Kornkod          Suk-aram

Nattakarn        Vivatvanavong

Chayanee        Maneein

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