Jurisdiction

Private International Act(“PIA”) is a statute that determines the principles and governing law of legal relations with foreign aspects (Article 1 of the PIA). When a divorce claim is filed, the Korean court will decide which law shall govern the filed divorce claim according to Article 39 which refers to Article 37 of the PIA. The governing law shall be one of either (i) the law of the country both spouses are from, (ii) if the couple have different nationalities, the law of the country in which both spouses have common habitual residence, (iii) if they don’t have a common habitual residence either, the law of the country which is most closely connected with both spouses. International marriages will obviously fall under category (ii) or (iii). However there is an exception: in case one of the spouses is Korean, and has habitual residence in Korea, the divorce shall be governed by Korean law.

Korean law shall be applied:

1. If both spouses are Korean (Article 39, 37 1.). It does not matter whether they are residing in Korea or both living overseas.

2. If only one of the spouses is Korean, Korean law will apply if both spouses or just the Korean spouse in living in Korea. If both spouses are living outside of Korea, if they have a common habitual residence, the law of that country or the law of the most closely connected country will be the governing law.

-Korean law can still be the governing law even if both spouses are non-Koreans. If they are both from the same country, the law of the mutual country will most likely be the governing law but Korean law can still be applied if, they are both living in Korea or is “most closely connected” with Korea.

Therefore, residence in Korea is not required to get a divorce from the Korean Court. Jurisdiction is not the biggest issue most of the time, but jurisdiction for settling property division, alimony, parental and custodial rights, child support, and visitation rights may vary. For example, in case of property division lex situs(the law of the country where the property is located) may apply, whereas in case of child custody the country where the child resides could be of importance.

For consultations on this issue do not hesitate to contact Cha & Kwon Law Offices.