[Legal Tips from Korean Lawyers] I Want a Divorce. Under What Circumstances Can I Get One?
Have you reached a point where you feel that divorce is the only option? First, I want to offer my condolences for the difficult situation you are going through. There must be a reason you’ve decided to consider divorce. Sometimes, both spouses agree to the divorce, but there are cases where one spouse does not.
Since not all cases qualify for divorce, let's explore the circumstances under which divorce is possible, according to law and legal precedents.
Divorce must follow specific legal procedures and criteria outlined in the Civil Code.
Types of Divorce
Divorce can be broadly categorized into two types: consensual divorce and judicial divorce.
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A consensual divorce occurs when both spouses mutually agree to end their marriage. If both parties agree to divorce, the process must be confirmed by the Family Court as stipulated in Article 836 of the Civil Code. This process is relatively simple and can be quickly resolved if the couple agrees on the details of the divorce.
However, if one spouse does not want a divorce or if they agree to the divorce but cannot reach an agreement on specific terms, consensual divorce is not possible, and a judicial divorce must be sought.
A judicial divorce is pursued when mutual agreement between the spouses is difficult to achieve, and the court must make the decision. Article 840 of the Civil Code outlines the grounds on which a judicial divorce can be requested.
1. Adultery by the Spouse
If a spouse has committed adultery, divorce can be requested. However, the spouse who committed adultery cannot file for divorce.
It is important to note that, according to legal precedents, "the spouse primarily responsible for the
breakdown of the marriage cannot request a divorce based on that breakdown. However, if the other party clearly has no intention of continuing the marriage and refuses divorce solely out of spite or a desire for revenge, an exception may be made to allow the at-fault spouse to request a divorce."
Additionally, if the wronged spouse consented to or forgave the adultery, or if six months have
passed since the discovery of the affair (or two years since the affair occurred), they cannot file for divorce on these grounds. This is a statute of limitations, and even if one of these conditions is met, the divorce cannot be pursued based on adultery.
2. Malicious Desertion
If a spouse leaves the home or fails to fulfill their duty to support the family without just cause, the other spouse can request a divorce.
Legal precedents define "malicious desertion" as when a spouse abandons their duties to live
together, support, and cooperate as a married couple without a legitimate reason. For instance, if one spouse lives with another person for an extended period, failing to fulfill their marital duties, this could be considered malicious desertion.
3. Severe Unfair Treatment
If a spouse or their direct relatives have subjected one to severe unfair treatment, divorce can be requested.
Legal precedents clarify that "the ground for divorce under Article 840, Paragraph 3 of the Civil
Code, 'severe unfair treatment by the spouse,' refers to cases where one spouse has been subjected to extreme violence, abuse, or serious insults that make it unbearable to continue the marriage." For example, if you suffer severe mistreatment from your spouse's parents during holidays, you may be qualified to ask for divorce under this ground.
4. Uncertainty of the Spouse’s Life or Death
If a spouse's whereabouts or whether they are alive has been unknown for more than three years, divorce can be requested.
5. Other Serious Reasons for Difficulty in Continuing the Marriage
If the marital relationship has irreparably broken down, making it impossible to continue, divorce can be recognized.
Legal precedents state, "the ground for divorce under Article 840, Paragraph 6 of the Civil Code,
'other serious reasons for difficulty in continuing the marriage,' refers to cases where the marital relationship has irreparably broken down to the point where continuing the marriage would cause intolerable suffering to one spouse." This shows a shift towards a fault-based and no-fault divorce approach, which will be further explained below.
Traditionally, Korean divorce law has been based on the fault-based principle. This means that when a marriage breaks down, the spouse responsible for the breakdown cannot request a divorce. For instance, a spouse who committed adultery cannot file for divorce. However, in cases where the marriage has irreparably broken down, no-fault divorce may be allowed under certain circumstances.
The Supreme Court has generally taken a conservative stance on allowing the at-fault spouse to file for divorce. The Court argues that since the at-fault spouse can pursue consensual divorce with the agreement of the other party, there is no compelling reason to introduce no-fault divorce in judicial proceedings. Additionally, the Court points out that allowing no-fault divorce could result in the innocent spouse being unfairly sacrificed for the at-fault spouse's happiness.
However, the Court has recognized exceptions where divorce may be granted to the at-fault spouse, considering factors such as the degree of marital breakdown, duration of separation, presence of minor children, age and occupation of the parties, and their financial situation. This reflects a compromise between the fault-based and no-fault divorce principles, where the at-fault spouse is generally not allowed to file for divorce, but an exception is made if the marriage has irreparably broken down.
Special Provisions
In certain situations, divorce may be sought for reasons beyond the general grounds for divorce. For instance, North Korean defectors who cannot confirm whether their spouse in North Korea resides in South Korea may request a divorce under Article 19-2 of the North Korean Refugees Protection and Settlement Support Act.
Considerations Before Divorce
Before deciding on divorce, several important factors must be carefully considered.
In a consensual divorce, both spouses must agree not only on the decision to divorce but also on the division of property, custody (if there are children), visitation rights, and child support. Additionally, guidance from the Family Court is required, and if there are children (including unborn children), a three-month cooling-off period is necessary, or one month if there are no children. This period allows the couple to reconsider their decision. Given the significant impact of child custody issues after divorce, it is important to prepare thoroughly in advance.
It is also essential to note that decisions regarding custody, visitation, and child support are not absolute and can be changed later through legal proceedings.
Divorce is an important decision that affects both the individual and the family. Especially in Korea,
where divorce law involves a mix of fault-based and no-fault principles, it is not straightforward to
determine whether a divorce can or cannot be granted. It is crucial to organize the facts of the case, gather evidence to support the grounds for divorce, and review various legal precedents.
If you are considering divorce, it is essential to carefully consider your decision and seek legal counsel to navigate the process.
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