We have received questions regarding this issue quite often. Actually our office had taken a civil case arising out of termination of marital engagement between Korean and non-Korean, and successfully defended our client from civil liability. So we think it is a good time to look into what happens in this kind of legal dispute and its legal implication.
Firstly, it must be mentioned that, under Korean law, if a matrimonial engagement is duly made, no party can legally terminate or rescind the engagement without justifiable causes. This, however, does not mean the engagement shall be enforced regardless of the objection from the other party once the engagement agreement was made. Rather, it just means if one party terminates the engagement without cause, he or she is obliged to pay monetary compensation to the other.
Then what are the “justifiable causes” to terminate the engagement? The law sets forth justifiable causes as follows:
- If one of the parties has been sentenced to punishment of not less than suspension of qualification;
- If one of the parties has been adjudicated as incompetent or quasi-incompetent after the conclusion of matrimonial engagement;
- If one of the parties has been suffering from venereal disease, incurable psychosis or any other incurable malignant disease;
- If one of the parties is engaged to or has married a person other than the party to the engagement after the conclusion of matrimonial engagement;
- If one of the parties has committed adultery with another person after the conclusion of matrimonial engagement;
- If the death and life of one of the parties has been unknown for one year or more after the conclusion of matrimonial engagement;
- If one of the parties has refused or delayed marriage without due reason; or
- If there exists any other serious reason.
One of the most litigious causes is the last one, “any other serious reason”. It is a catch-all clause, and anything which amounts to the extent that enforcing the engagement agreement is substantially against the welfare and dignity of human being can fall in that clause.
With that said, you may now have some ideas that the main issues in this kind of litigation will hinge on (i) whether there exists a duly made matrimonial engagement between the parties, and (ii) (if it does) whether the breaching party has a justifiable cause of termination as described above. That is to say, if an engagement was legally made and a party is to terminate the engagement unilaterally without justifiable cause, he or she will be obliged to pay some monetary compensation to the other.
Please note that, deciding whether there exists an engagement or not is a matter of legal judgement. The court considers various facts to decide this issue. Sometimes court refuses to acknowledge the existence of engagement when the duration for dating is too short or there had been no formal ceremony or there had been no mutual approval from both families. But once again, these respective facts are not crucial. The court will see the totality of the circumstances.
Lastly, as to the issue of “existence of serious reason to terminate the engagement”, one of the defenses that the defendant, who wants to get out of the binding engagement, might think of is an argument that the termination was not solely done by herself and it was inevitable because of mutual disagreement on something material in prospective matrimonial relationship.
We hope this to be of assistance to anyone who is in a situation of engagement termination dispute. If you have any question about marital engagement or other Korean family law issue, please send your inquiry by clicking here.
© 2012 Wonil Chung, Korean licensed Lawyer. All rights reserved.
Because of the generality of this update, the information provided herein may or may not reflect the most current legal development at the time of view, nor is it applicable in all situations and should not be acted upon without specific legal advice based on particular situations.