Divorce in Korea
Divorce law and procedure in Korea varies greatly from that in California. The biggest difference, perhaps, is the absence of no-fault divorce in Korea. This means that unless the parties in a Korean marriage reach an agreement between themselves to divorce, only an “innocent” party may seek a divorce.
On September 15, 2015, the Supreme Court of Korea upheld the precedent that a court may not grant a divorce when the petitioner is the spouse responsible for the breakdown of the marriage. Should the couple agree, however, they may divorce by stipulation.[i] Civil Code Article 836 Section 2, laws out the procedural requirements.
Divorce by Stipulation
First, the parties must file a joint request for a court’s confirmation of the parties’ intent to divorce[ii]: A couple that wants to file for a stipulated divorce shall receive an instruction on divorce provided by a family court. A couple that petitioned for confirmation of intent to divorce may obtain the same after 3 months (if children) or 1 month (if no children).
Next, the parties must appear before the court to obtain the court’s confirmation.[iii] Both parties must appear before Court to confirm their intent to divorce after the period starting from the date when the parties received a guide on divorce until the time set forth under Article 836 Section 2 Sub-section (2) or (3) of the Civil Code has passed.
If one party resides abroad or is imprisoned, the absent party’s appearance and statement can be substituted by making a request to the head of diplomatic offices or the head of correctional facility to confirm his or her intent to divorce and by having the reply entered. In a case where one of the spouses resides in California, the Court Consul will conduct the in-person interview with the U.S. resident spouse and submit a report back to the Court re confirmation of intent to divorce. Only then will the Court will summon the Korean resident spouse back in to confirm his/her intent to divorce. If both spouses reside abroad, they can go through the confirmation process at the Consulate.
Finally, the parties must submit the Confirmation of Parties’ Intent to Divorce along with an application/report for divorce per Rule on the Registration, Etc. of Family Relationship Article 79 within 3 months. A court’s confirmation of parties’ intent to divorce expires after 90 days. The confirmation document is not a divorce judgment.[iv]
The couple must register an application/report for divorce along with the court’s confirmation (and other documents) at any registrar’s office in order to finalize their stipulated divorce. If the parties fail to register their confirmation of intent to divorce and their application/report for divorce within 90 days, the confirmation becomes invalid, and the parties will need to restart the entire process.
Divorce by Litigation
Should the parties not mutually agree to divorce, an innocent spouse may seek a divorce via litigation. First, the non-offending party must establish fault of the other spouse. Civil Code Article 840 provides the grounds for a divorce:
- Adultery
- No longer a criminal offense starting February 2015.
- If the spouse has previously given consent or an ex post facto tolerance, or if six months have passed since the spouse was aware of such act of adultery, or if two years have passed since the happening of such event, the spouse may not apply to the court for a divorce.[v]
- Desertion with malice
- Extreme cruelty and abuse, including maltreatment by a spouse or the spouse’s lineal ascendants & maltreatment of a spouse by the other spouse’s lineal ascendants;
- Death/life of other spouse unknown for 3 years;
- Any other serious cause making it difficult to continue the marriage, including failure to perform essential duties. (One spouse may not apply to the court for divorce after the lapse of six months since the day when the spouse became aware of such cause, or after the lapse of two years since such cause has occurred.)[vi]
Litigating a divorce in Korea may take anywhere from 6 to 18 months. Significantly different from divorce in California, divorce in Korea does not allow pretrial discovery without court order. This means there are no subpoenas issued, no depositions taken, etc.
Common law marriage[vii] divorce proceedings are the same as those for a litigated divorce (after proving a common law marriage exists). Once a court finds a common law marriage, the court will divide the parties’ property as the court would for a couple with a legal/de jure marriage.
If litigating the existence of a de facto marriage, a court wound consider the length of cohabitation, whether they acted like husband and wife in their relationship, how the couple represented themselves to others, etc. For example, in Seoul Family Court decision from 2013[viii] a Court found a de facto marriage existed where the couple lived together for almost 5 years, called each other husband and wife to their neighbors/at events/with family, and engaged in couple behavior like using nicknames, eating meals with family, and visiting deceased family members’ graves. The Court divided the couple’s property accordingly.
Per Article 72 of the Act on the Registration, Etc. of Family Relationships, in cases where a court has confirmed the existence of a de facto marriage, the person who filed the action shall file a report of marriage (in accord with Article 71).
[i] Civil Code Article 834.
[ii] Per Civil Code Article 836, Section 2.
[iii] Per Rule on the Registration, Etc. of Family Relationship, Article 74, and Rule on the Registration, Etc. of Family Relationship, Articles 75 and 76.
[iv] Supreme Court Decision entered on 01/20/1987 – 86Meu86.
[v] Civil Code Article 841.
[vi] Civil Code Article 842.
[vii] As discussed in a prior blog post, Korea (unlike California) recognizes common law marriage.
[viii] 2012Neuhap144.