PAYING FOR UPBRINGING: IS IT APPROPRIATE?
Article by Sarun Pimngam
and Pannathorn Khuankaew
The mother, divorced her husband in 1990 and raised their two sons on her own., signed a contract with her son when he was 20 years old, stating he would pay her 60% of his monthly income after qualifying. She took him to court after he refused to pay her for several years. Her younger son claimed that the contract violated “good customs.” He argued it was wrong to demand a financial return for raising a child, but the court ruled the contract valid.
The supreme court said the contract was valid as the son was an adult when he signed it, and that as a dentist he was capable of repaying his mother. Therefore, he has been ordered to make back payments, as well as interest, to his mother.
I. PAYING FOR UPBRINGING: LAWS OF TAIWAN
Article 12 of the Civil Code of Taiwan states that “Majority is attained upon reaching the twentieth year of age.” Therefore, a capacity to do a legal act is acquired on reaching the age of majority, that is on the completion of one’s twentieth year.
Besides, Article 13 of Civil Code of Taiwan prescribes for “Juridical Acts” (legal acts), the capacity to do a legal act is lacking in children under the age of seven. The expression of the intent of a person who cannot do juridical acts is void (Article 75). However, a legal act done by a minor between the ages of seven and nineteen is not void: They have a limited capacity to do juridical acts. The making of an expression of intent of a person who is limited in capacity to make juridical acts must be approved by his guardian (Article 77).
According to Article 72, a juridical act which is against public policy or morals is void. One problem with this case was that was contracts with an agreement on reimbursement for upbringing against public policy or morals?
Taiwan’s Supreme Court explained that the civil law allows the persons involved to enter into a financial support payment agreement. And as there is a ceiling on the amount of the support, the agreement will not cause the son to face a struggle for survival and is not opposed to morals, good customs or public order.
The court also pointed out that the son had reached the age of majority when he signed the agreement. Therefore, he was responsible for satisfying its terms. The principle is backed up by law in Taiwan, where adults are legally prohibited from abandoning their parents.
Furthermore, Articles 1114-1121 prescribe for maintenance; the son is under a mutual obligation to maintain parents.
II. IN COMPARISON WITH THAI LAW
Section 19 of the Thailand’s Civil and Commercial Code states that a person, on the completion of twenty years of age ceases to be a minor and become sui juris. Therefore, this article is same the rule of the Article 12 of the Civil Code of Taiwan, ruling that when a person becomes twenty years old, he discontinues being a minor and reaching the age of majority.
A person under the age of twenty is a minor under Thai law. A legal act done by a minor is not void. A minor shall obtain the legal consent of his legal representative when doing a juristic act. Any act done by a minor without such consent is voidable unless proved otherwise. Usually, the legal representative is parents.
To illustrate, when the minor makes a contract, without the legal consent of his legal representative, Section 21 imposes a legal effect on such contract; it must be invalid and voidable. When a voidable contract is avoided by the legal representative, it is deemed to have been void from the beginning (Section 176). Conversely, if the legal representative ratifies a voidable contract, it is deemed to have been valid from the beginning (Section 177).
Furthermore, when a person makes a juristic act or contract under Thai law, his or her primary concern is the law of juristic acts. A contract may be void; an act is void if its object is expressly prohibited by law or is impossible, or is contrary to public order or good morals (Section 150). A void act or contract has no legal effect and is unenforceable. In this way, Section 150 of the Thailand’s Civil and Commercial Code, is similar to the Article 72 of the Taiwan Civil Code.
III. MAINTENANCES BETWEEN PARENTS AND THEIR CHILDREN
Thinking about the Taiwan case of paying for upbringing under Thai law, the contract should not be opposed to morals, good customs or public order. The reason is that the family law of Thailand has the provisions same as the Taiwan Civil Code. Section 1564 of Thailand’s Civil and Commercial Code prescribes that parents shall maintain their children and shall provide proper education during their minority. In addition, children shall maintain their parents.
Civil and Commercial Code of Thailand Section 1564.
(1) Parents are bound to maintain their children and to provude proper education for them during their minority.
(2) When the Children are sui juris, parents are bound to maintain them only when they are infirm and unable to earn their living.
To be precise, Sections 1598/38-1598/41 prescribe for maintenance, these provisions are similar to the provisions of the Civil Code of Taiwan. Maintenance between parents and child may be claimed by the person who is supposed to be maintained, is not maintained or is insufficiently maintained as to the condition in life.
The Court shall decide whether to grant the maintenance and the amount thereof with regard to the capability of the person to provide the maintenance, financial condition of the receiver and circumstances of the case (Section 1598/38). In addition, the Court may order the change to the maintenance (Section 1598/39).
As I explained above, Taiwan law imposed a duty to take care of or an obligation to maintain parents. Therefore, some similar reasons are given for the Taiwan case under Thai law. Firstly, Thai law allows the persons involved to enter into a financial support payment agreement such as reimbursement for the upbringing and is not opposed to morals, good customs or public order. Secondly, The principle is backed up by law in Thailand, where adults have legally maintained their parents.
However, the reasons for Taiwan’s Supreme Court are a legal experience in applying the law. When the case comes to Courts of Justice in Thailand – paying for upbringing – Thai legal community may not agree with Taiwan’s Supreme Court decision.