Divorce Process in Korea

Once the Korean law is determined as the law to govern the divorce process(for information on determining the jurisdiction CLICK), Korean divorce law does not treat foreigners with different standards. There are two types of divorce. One is (1) divorce by agreement(LINK), 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.

[2] Divorce by Court Order

*Types of Family Cases

“Family Cases” are court cases that are examined and adjudicated under the “exclusive” jurisdiction of the Family Court. They are categorized into “Contentious Family Cases”(Gasa Sosong Sageon) and “Non-Contentious Family Cases”(Gasa Bisong Sageon).

“Non-Contentious Family Cases” differ from “Contentious Family Cases” in that it is a one-sided structure rather than a two-party confrontation structure, the principle of ex officio investigation is implemented rather than the principle of Party (principle that court may only rule what has been brought to the court by the parties), pleadings are not required, rulings are in the form of “decisions” rather than “judgements”(“decisions” do not have res judicata).

“Contentious Family Cases” are again divided into Category “Ga”, “Na”, and “Da” Cases, while Category “Ra”, “Ma”, and other miscellaneous cases prescribed by Supreme Court Regulations fall under “Non-Contentious Family Cases”. Category Ga Cases include the nullification of marriage, divorce, adoption, breach of adoption etc; Category Na Cases include the confirmation of de facto marriage, cancellation of marriage or divorce, cancellation of adoption or revocation of adoption, and judicial divorce etc; Category Da Cases include claims for compensation of damages or restitution due to recession of marriage engagements, unlawful annulment of de facto marriages, nullification or cancellation of marriage/ divorce/ adoption/ revocation of adoption, and claim for division of property.

Category Ra Cases are mostly comprised of adjudications on commencement and termination of adult/ limited adult guardianship, adoption and revocation of adoption, inheritance, will, etc; Category Ma Cases are mostly related to cases pertaining to the relationship of the couple.

When both spouses disagree in whether they should and/or how to divorce, they need to file a Divorce by Court Order. Divorce by Court Order is again divided into “Conciliations” and “Litigations”.

*Conciliations vs Litigations?

1. Conciliations

Unlike lawsuits, conciliation is a system in which divorce is resolved peacefully through mutual compromises and concessions upon sufficient examination of the opinions of both parties and taking into account various circumstances. Korea adopts the “Principle of Prefixing Conciliation” approach in divorce by court order. This means that it is obligatory for both divorce parties to undergo the conciliation process before they can go to court. If litigation is instituted(Cases Ga, Na, Da) or adjudication is requested(Cases Ra, Ma) before going through the conciliation process, the case will be referred to the Conciliation Court. Provided that, 1) if it is deemed that summoning one or both parties is impossible, or 2) if it constituting a conciliation is impossible even if the relevant case is referred to conciliation.

If Conciliation is constituted, it will come into effect upon the writing of the matters conciliated between the parties. If conciliation cannot be made, the parties will then enter into litigations.

2. Litigations

Parties will enter into litigations when Conciliation is impossible as described hereinabove, and when 1) there is a “ruling not to be proceeded with conciliation” pursuant to Article 26 of the Judicial Conciliation of Civil Disputes Act(hereinafter “Civil Conciliation Act”) due to the case being deemed not suitable in its nature for conciliation or deemed as with an improper purpose, 2) there is a “failure of conciliation” pursuant to Article 27 of the same Act due to parties failing to reach agreement or the details of the arguments are deemed inappropriate, or if 3) one of the party has filed an objection within two weeks against Decisions in Lieu of Conciliation decided by the Conciliation Judge pursuant to Article 30. Decisions in Lieu may be issued when 1) agreement has not been reached, 2) the terms of agreement are deemed inappropriate, 3) a respondent fails to appear on the hearing date for conciliation pursuant to Article 32.