Divorce Process in Korea

Once the Korean law is determined as the law to govern the divorce process(for information on determining the jurisdiction, link), 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

*Causes for Judicial Divorce

In Korea, there needs to be a cause(or causes) for judicial divorce to be recognized. Article 840 of the Civil Act enumerates the causes of divorce as follows:

1. If the other spouse has committed an act of unchastity;
2. If one spouse has knowingly deserted by the other spouse;
3. If one spouse has been extremely maltreated by the other spouse or his or her lineal ascendants;
4. If one spouse’s lineal ascendant has been extremely maltreated by the other spouse;
5. If the death or life of the other spouse has been unknown for three years;
6. If there exists any other serious cause for making it difficult to continue the marriage.

1) Act of Unchastity

An “act of unchastity” includes “all acts that are not faithful as the spouse’s conjugal obligations and thus is a broader concept compared to what is known as adultery”(Supreme Court Decision 92Meu68 decided 1992. 11. 10.). This case hereinabove was a case of divorce and consolation money in which the defendants asserted that Park(the spouse) did not commit an “act of unchastity” because he was unable to engage in sexual activity due to his old age (68 years-old) and paralysis of the left limb due to a stroke. The Court dismissed the argument hereinabove and ruled that the defendant Park’s action of living together with another woman was indeed an “act of unchastity” unfaithful to the spouse’s conjugal obligations.

However, if the unfaithful act, even what is known as adultery, is committed before marriage during the engagement period, the Supreme Court ruled that is does not fall under the definition of an “unchaste act” prescribed by Article 840 (1) of the Civil Act.

The important thing is that Article 841 provides that the right to apply for divorce under Article 840 (1) becomes rendered extinct after six months having passed since the spouse is aware of such unchaste act or two years having passed since the happening of such event. Therefore, if this time frame has passed, he/she cannot file for divorce. This is the same for if a spouse had agreed in advance or forgave after the wrongdoing.

2) Desertion

A spouse “knowingly deserts” the other spouse if he/she “fails to fulfill, without a justifiable reason, the obligation to live together, support, and cooperate with the other spouse”(Supreme Court Decision 86Meu26 decided 1986. 5. 27.). “Desertion” does not seem to be recognized based on the time period one of the spouse neglected his/her obligation to live together, but rather whether the circumstances and cause of desertion seems irrevocable. On the other hand, “justifiable reason” for knowing desertion was recognized in cases where the spouse ran away due to another’s ranting or verbal violence, and where the spouse evacuated home on grounds of financial failures.

There is no clause for the extinction of right to apply for divorce under this Article, but since Article 840(2) is an “establishment right”(right which can bring about change in a legal relationship by only an one-sided expression of intention on part of the holder of the right), after ten years having passed since he/she can apply for divorce the right will be rendered extinct.

3) Maltreatment to spouse(or his/her lineal ascendants) or by spouse(or his/her lineal ascendants)

“Maltreatment” is severe unfair treatment of a spouse or his/her immediate family, by a spouse or his/her immediate family to the extent that it can be deemed extremely harsh to force the continuation of the marriage relationship(Supreme Court Decision 2003Meu1890, decided 2004. 2. 27.)

4) Missing spouse

If the life or death of the other spouse has been unknown for three years, he/she can also file a divorce.

5) Other causes

“Serious cause for making it difficult to continue the marriage” signifies that “the amicable marital relationship, which is the essence of marriage, is irretrievably broken, and forcing the continuation of the marital life becomes intolerable pain for one of the spouses.”(Supreme Court Decision 2005Meu16899 decided 2005. 12. 23.)

The cause provided in Article 840 (6) is a general cause. Therefore, although Korea does not recognize divorce without cause, practically anything that makes it impossible for one to maintain his/her marriage life may be recognized as the cause of divorce.