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 divided.
Then the next issue will be how the marital assets are divided under Korean law. The Korean law follows the equitable distribution approach. It does not recognize the community property whereby the marital assets are divided equally between the spouses regardless of their respective contributions. In Korea, the party has an equitable and contributory share to the marital assets and can ask for the distribution of the assets pursuant to the his or her share.
How does the court decide the equitable share of the parties? It is impossible to say it uniformly. For example, assuming the parties have the same contribution and same degrees of earning, then it shall go to 50:50. In this regard, the court considers the parties’ ages, occupations, the reason why they came to a divorce, contribution to the property and so on in deciding the proportion. In certain cases, court ruled “30:70”, “40:60”, “70:30”. It is totally case by case.
Lastly, please note that the claim for division of property under Korean law shall be extinguished at the expiration of 2 years from the date of divorce.
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