Question) I am a US citizen and have been living with my Korean boy friend for about 3 years in South Korea. We loved each other and agreed to marry, but we were so busy to have the legal process timely done and most importantly we found no need to do that. We’ve just thought each other as husband and wife and so do our friends and families. While living together, he ran an Internet business and made a quite large profits from there. I took care of every housework and sometimes I helped his business work, too. But, recently I found he had cheated on me. I was so shocked and got separated from him. My concern is whether I have any right to the assets accumulated during our cohabitation, like a property division right between divorcing couple.
Answer) Under Korean law, in order to establish the marital relationship, the parties must report their marriage to the government. If the parties live together considering themselves each other’s spouses without reporting the marriage, it is called a de facto marriage. A de facto marriage is not a legal marriage. Thus it is not entitled to the same legal protection as the marriage. But, when it comes to the resolution of the de facto marriage relationship, the Korean law applies almost identical protection to the parties.
First, the Korean law grants the right of property division to each party of the de facto marriage. Any party is entitled to the share of the assets acquired during the relationship pursuant to his or her contribution. Even if the party is solely responsible for the relationship breakdown, the person is still entitled to. Second, a party can seek a consolation money against the other party, if the other party is solely responsible for the relationship breakdown. The amount the party can seek is decided by various Continue reading
Q) My friend was convicted of a crime and sentenced to 1-year probation. It was an accident which happened while he was drunken. After then, the immigration officer ordered him to leave South Korea within a month on the ground of the conviction. He is having an E-2 visa and was married to a Korean national. He has a very good reputation around him and planned to live in Korea permanently. I think it is too harsh for him to leave Korea. Does he have any chance to appeal?
A) At the outset, the deportation order from the immigration office can be overturned by the court based on the theory of misuse of discretionary power. The court has ruled that the decision of the immigration office to deport a foreigner should not only meet the requirements provided by the relevant statute, but also, even though it does, any deportation decision which could do more harm to the foreigner’s individual life than benefits to the public constitutes an abuse of discretion and therefore cannot be sustained.
For example, the court has ruled that a deportation order against the HIV positive personnel is an abuse of discretionary power considering the person’s long-time living base in Korea. Also a deportation order against the person with one and half year jail time sentence with 3 year suspension for the violation of (then-existing) Anticommunist Act was struck down as the court found it an abuse of discretionary power considering his other character evidences and solid living base in Korea. Also there have been many successful appeal cases Continue reading
Q) I have a friend who is living in New York. He is a US Citizen who has resided in New York for several years. His wife is from South Korea, but they have not seen each other since 2009. I don’t believe there is any animosity; he just wants to file for divorce since they are no longer in contact. My friend has not been able to get in contact with her for some time, and her family is unsure of her whereabouts as well. The parties were married in South Korea. My friend has been residing in New York so he can file here for divorce; however I am concerned about having proper service there in Korea, especially since we are unsure of her whereabouts. I believe it may be beneficial for my friend to contact a Korean Attorney. I also need to make sure that his wife did not already file for divorce in South Korea or else us filing her is a duplication of services.
A) If your friend is unable to locate his wife in Korea and concerned about the issue of proper service when filing for divorce in New York, it could be an alternative to file for divorce in Korea. In a case where the plaintiff does not know the whereabouts of the defendant, the Korean court issues a divorce decree in ex parte. But, you have to consult with a New York lawyer in advance regarding whether the Korean divorce decree in ex parte shall be recognized in New York. The same problem will arise when the New York court issues a divorce decree in ex parte, which will not be recognized by the Korean court. Of course, if your friend does not Continue reading
Q) I filed for divorce in Ontario, Canada. My husband lived in Canada and he was duly served with the court’s documents. I will have a final divorce ruling from Canadian court including child support and alimony order soon. But the issue is he will probably leave Canada and head to South Korea after the ruling is issued. Will the Korean Courts recognize the Canadian court order in order to enforce his performance of child support and alimony payment?
A) There is a case where Korean Supreme Court recognized and approved the Canadian court’s divorce/asset distribution/alimony order. That order was issued from Superior Court of Justice in Ontario.
As a matter of law, Korean court recognizes foreign court’s divorce ruling so far as (i) the foreign court has a jurisdiction over the case in perspective of Korean law, (ii) the defendant was duly served, (iii) the ruling of the foreign court does not violate the social order of South Korea and (iv) there exists a mutual guaranty for recognition of rulings between the two jurisdictions. For the last element, the Korean Supreme Court held that South Korea and Ontario have a mutual guaranty. What is more important here is that the Supreme Court recognized foreign court’s alimony order. Under Korean law, there is no legal concept of alimony in divorce. Therefore, some may argue that as the alimony is not the legal right established in Korea, recognizing foreign court’s alimony ruling in Korea would violate the social order of South Korea. But, Continue reading
Q) I have some questions about marriage and divorce law in Korea regarding two non-Koreans living in Korea. Can they divorce and re-marry in Korea?
A) The Korean court hears international divorce lawsuit basically if the defendant resides in Korea. So long as the defendant resides in Korea, the duration of his residence does not matter. Even if the plaintiff does not reside in Korea, she can file a divorce lawsuit to a Korean court. If the defendant does not reside in Korea, the divorce lawsuit can be accepted only when the plaintiff fails to locate the defendant or the defendant answers the lawsuit filed under Korean court.
Regarding the governing law, the divorce case shall be governed in the following order:
- the same law of nationality of both spouses
- the same law of habitual residence of both spouses
- the law of the place where is most closely connected with both spouses.
If one party is a Korean national having a habitual residence in Korea, notwithstanding the foregoing, the law of South Korea will be the governing law.
The Korean court shall decide Continue reading
Q) Most of my friends say if you’ve got separated for many years, it is easy to apply for a divorce. Is that true?
A) Basically being separated for many years is, by itself, not an justifiable cause for a judicial divorce under Korea divorce law. The key issue will be why both of you have been separated. If it is because of your husband’s violence and/or maltreatment, you’re surely entitled to request a divorce decree to a Korean Family court, even if you’re separated for only 1 day. To the contrary, if you’ve maliciously Continue reading
Q) I am on an F2 visa and teaching for 28 months at the same school. The contract between myself and the owner is basically a few written lines, just mention salary and final teaching date. There is no mentioning of severance payment. According to the labor law, am I entitled to severance payment even though it is not mention in a short contract?
A) If and to the extent that you are legally regarded as an employee under Korean labor law, you are entitled to the severance payment.
The term employee under Korean labor law is someone who provides labor pursuant to his or her employer’s instructions or directions in exchange for wage compensation. The most important factors for classifying someone as an employee are, Continue reading