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 the 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 the Korean Supreme Court recognized and approved the Canadian court’s divorce/asset distribution/child support/alimony order. That order was issued from the Superior Court of Justice in Ontario.
As a matter of law, the Korean court recognizes a foreign ruling pursuant to the rules of foreign judgment recognition: (i) the foreign court has 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 clearly declared that South Korea and Ontario have a mutual guaranty.
What is more important in this ruling is that the Supreme Court recognized the foreign court’s alimony order. Under Korean divorce law, there is no legal concept of alimony in a divorce. Therefore, some may argue that as the alimony is not the legal right established in Korea, recognizing the foreign court’s alimony ruling in Korea would violate the social order of South Korea. But, the Supreme Court explicitly rejected that argument.
Let’s get back to the facts in the question. Here, (i) both parties lived in Canada at the time of filing the lawsuit, which establishes the Canadian Court’s jurisdiction in the perspective of Korean law, (ii) her husband was duly served, (iii) the alimony and child support are not regarded as violating Korean social order, and (iv) there is a mutual guaranty for recognition of rulings between South Korean court and the court of Ontario. That said, all the requirements for the recognition of your soon to have Canadian divorce decree are met, and the alimony and child support orders included in the decree shall be recognized and fully enforceable in Korea.
These legal conclusions and reasoning also apply to a divorce decree from a U.S. court. As Korean courts have recognized the existence of mutual guaranty between the courts of Korea and the U.S., a divorce decree from the U.S. is usually recognized and enforced in Korea so long as the legal paper was duly served to the defendant and the U.S. court had jurisdiction over the case.
If you have any questions about enforcement of foreign divorce judgment in Korea, please send your inquiry to Mr. Wonil Chung and Chung & partners, a Korean full-service law firm, by clicking here.
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