Let’s assume a situation where a husband has an affair with someone and he wants to get divorced. Can it happen legally under Korea divorce law?
The answer is, it could not be easy for him to get divorced unless the wife agrees to it. Someone may argue that as long as the marriage cannot be sustained because of husband’s act of unchastity, it is meaningless and no good for anyone to force the continuance of the marriage.
Well, that allegation sounds plausible, but may be rejected by the Korean court.
Korean law(Civil Act) allows judicial divorce in the following cases(Article 840 of Civil Code):
1. If the other spouse has committed an act of unchastity.
2. If one spouse has been maliciously deserted by the other spouse
3. If one spouse has been extremely maltreated by the other spouse or his or her linear ascendants
4. If one spouse’s linear ascendants has been extremely maltreated by the other spouse
5. If the death or life of the other spouse has been unknown for 3 years; or
6. If there exists any other serious cause for making it difficult to continue the marriage.
One thing should be noted is that, in general, the spouse who is responsible for the breakdown of marriage can NOT apply to the court for a divorce. That means, even though the fact that a husband cheated on his wife does come under article 840 of Civil Code, who can ask for a divorce to the court is only the wife, not the husband who is responsible for the marriage breakdown. This legal standard has been repeatedly affirmed by numerous Supreme Court’s rulings.
However, in a rare case where the wife irresponsible for the marriage breakdown also wants a divorce but does not accept the other spouse’s demand for a divorce by reason of mere obstinacy or revenge, the court would exceptionally accept the responsible spouse’s claim for a divorce.
Let’s get back to the question. As the husband has committed an act of unchastity, in principle, the husband can not apply for a divorce. The husband, however, can file for divorce when the wife also wants divorce explicitly or impliedly, especially when she refuses the divorce only because of obstinacy or revenge on her husband.
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© 2008 Chung & Partners, a Korean Law Firm. All rights reserved.
Because of the generality of this update, the information provided herein, which may or may not reflect the most current legal development, may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.