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 wish to file a divorce from my wife. Our relationship ended in practice earlier this year and she returned to Korea in August. We were marred in Korea. I wonder how can I file for our divorce as she is in Korea but I am not living in Korea. I would prefer uncontested but would go with a contested divorce if necessary. But I am living in the UK. Can you tell me what process I should pursue?
A) At the outset, as your wife lives in Korea, you can file for divorce to a Korean Family Court. Even if your wife does not have a Korean nationality, it is still the same. But you probably need to hire a Korean legal counsel who can represent you in the court, as you are not living in Korea. With that said, if you hire a Korean divorce attorney, you are not required to come to Korea nor to attend the court. Your Korean divorce attorney will handle everything for you.
The next issue will be which nation’s divorce law will govern your case, when you file for divorce in Korea. If your wife is a Korean, then the Korean divorce law shall be the governing law. If your wife is a UK citizen, then the divorce law of UK shall apply.
When the Korean divorce law becomes the governing law, in order to get a divorce decree, you have to show some types of justifiable causes for divorce under Korean law such as domestic violence, unchastity, etc. Not surprisingly, Korean court quite often issues a divorce ruling when it founds the marriage was irretrievably broken. Common grounds 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’m a U.S. citizen married to a Korean woman having one child. Currently we live apart and our child’s living time is split between us. I wouldn’t mind this situation if I knew she could be trusted to care for him safely and properly. But she can’t do this. I’m incredibly worried about his present safety and his emotional development. We have the papers but she won’t sign them, she uses our marital situation to manipulate me. Is there any way I can file for divorce without her consent? If so, where can I do this? Also, what would I need to do to obtain sole parent authority after the divorce?
A) If she keeps refusing to sign the divorce agreement, you have no choice but to file a divorce lawsuit in a Korean court which has a jurisdiction over the residence where she lives in order for the divorce to be finalized in Korea. Of course, Continue reading
Korean divorce law allows a claim for division of property to any party of divorcing couple. It means even the spouse who is responsible for the marriage breakdown has the right, too.
Division of property shall be determined by the parties’ agreement first. If no agreement is made or if it is impossible to reach an agreement, the Family court shall, upon request of the parties, determine the amount and method of division.
One thing which should be noted is that the object of the division is only the marital assets which means the “property acquired by cooperation of both parties during the marriage”. That mens, if the property in issue is acquired by only either party’s effort and funds, then it shall not be Continue reading