Divorce Process in Korea

Once the Korean law is determined as the law to govern the divorce process, Korean divorce law does not treat foreigners with different standards. There are two types of divorce. One is (1) divorce by agreement, and the other is (2) divorce by court order. The difference between the two is that divorce by agreement is uncontested whereas judicial divorce is.

[1] Divorce by Agreement

When both spouses agree to divorce, the Korean Family Court will issue a divorce decree after verifying that there is a mutual genuine intent of divorce. The court will not question the cause of divorce and no judicial review will be made.

1) The Process

   A. Intent to Divorce: The mutual intent to divorce must exist not only at the time the divorce agreement is filed, but also when it is accepted (the term refers to the time when the divorce comes legally into effect. Take note that it differs from when the court receives the divorce report) by the Court. According to the Supreme Court, “intent to divorce” is interpreted as the “intention to terminate one’s legal marital status”. (See below)

1. False Divorce: The Court ruled that “Divorce by Agreement cannot be annulled even if the divorce was filed under the intention to terminate their legal marital status only temporarily, or if there were other purposes behind the divorce, as it cannot be said that the mutual intent to divorce was non-existent(Supreme Court Decision 93Meu171 decided 1993. 6. 11.). This was the case where the husband mistakenly believed that he could only claim for salary against his parents-in-law by cutting family ties with them. The Court ruled that even if the divorce intentions of the husband was “impermanent” and “for other reasons” the divorce cannot be annulled.
2. Divorce by Fraud or Duress: A party who has agreed to divorce by fraud or duress may claim the divorce be revoked to the Family Court within three months of knowledge of fraud or is liberated from being under the condition of duress(Article 838 and 839 of the Civil Act). The Supreme Court also confirmed that divorce can be revoked even after the divorce decree is issued by the Family Court’s(referred to as the “confirmation”) under the following logic: “The process of confirming intentions to divorce only includes whether both spouses have true intentions to divorce at the time their divorce is confirmed and does not include whether they have the capability to decide their divorce or under what circumstances they have come to decide their divorce. Since divorce by agreement is based on the couple’s settlement, the Court’s role is confined to confirming their intentions to divorce. Thus, the effects of a divorce agreement must follow the principles of civil law and therefore if one party’s decision to divorce has been triggered by fraud or duress, it can be revoked under Article 838 of the Civil Act.”(Supreme Court Decision 86Meu86 decided 1987. 1. 20.) This court decision implies that the divorce decree issued by the Family Court does not entail any independent or permanent effects.

    B. Compulsory Cooling-off Period: Both spouses applying for divorce by agreement must hear a guidance on divorce provided by the Family Court, and the Family Court may recommend to take counsel with a professional counselor if she finds it necessary(Article 836-2(1) of the Civil Act). Both spouses can confirm their intention to divorce after—one month if they have no children or three months if they have children or are pregnant with child(Article 836-2(2) of the Civil Act). This time period can be excused or reduced under the urgent circumstances one of the party is unbearably suffering from domestic violence(Article 836-2(3) of the Civil Act).

   C. Parental and Custodial Agreement: If the couple have children under the age of 19(legal age), they must submit an agreement on parental and custodial rights, the amount of child support, and visitation rights or submit a court order from the Family Court before confirming intentions to divorce(Article 836-2(4) of the Civil Act). If the agreement cannot or would not be made, the Family Court can decide ex officio or upon the request of one party(Article 837(4) of the Civil Act). The Family Court will also establish a child support order, which has the same effect as an execution title(Article 836-2(5) of the Civil Act).

   D. Reporting Divorce: Divorce by agreement only comes into effect upon reporting to the relevant Si, Gu, Eup, Myun office of one of the spouses’ place of registration or address, the divorce decree issued by the Family Court(referred to as the “confirmation”), within three months the confirmation is issued(Article 75 of Act on Registration of Family Relations). The confirmation loses its legal effect whence this time period lapses.

[Applying for Divorce by Agreement(THE DETAILS)]

• 1. Where to apply? The Family Court of the couple’s place of registration or address. (scourt.go.kr)
  2. Required documents for registration?

-Application for Divorce by Agreement : it must be filed in writing with joint signatures of both parties and two adult witnesses(Article 836(2) of the Civil Act).

-Certificate of Family Relations 

-Certificate of Marriage Relations 

-If with children under the age of 19, the Agreement on the Parenting and Custody of the child(one original copy and two photocopies), or a court order and its Certificate of Confirmation(three photocopies each).

-If the other party is outside the Republic of Korea, Certificate of Overseas Resident Registration or other proof of identification and address.

-Delivery fee: estimated about 5,100KRW (per number of defendant) 

2) Cancellation and Withdrawal of Divorce: Divorce by agreement can be cancelled before the Family Court issues the divorce decree(referred to as the “confirmation”). Or it is considered cancelled if one or both parties fails to attend the court hearing twice(Article 77 of Enforcement Rule on Registration of Family Relations). Even after the divorce decree is issued by the Family Court, one party can withdraw their intention to divorce before the other reports the divorce to the relevant Si, Gu, Eup, Myun office. However, the withdrawal takes no effect if the divorce process is finalized by the reporting before the withdrawal is submitted (Article 80(1)and(2) of Enforcement Rule on Registration of Family Relations).