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. Just having a wedding ceremony is not enough. If the parties live together considering themselves each other’s spouse 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 level of legal protection as the legal 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. Each 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 factors such as duration of relationship, the extent of hardship the party suffered and so on.
Interesting thing about the resolution of de facto marriage is, unlike a divorce, it does not require a justifiable cause for the resolution to take effective. This means a party can unilaterally terminate the de facto marriage without any cause. But, if he or she terminates de facto marriage without cause, the party could be liable for the consolation money to the other party.
Then, when can a de facto marriage be legally established under Korean law? The court’s recognition of de facto marriage is subject to the finding of both (i) mutual intent to form a marital relationship, and (ii) existence of substance of marital life. For this purpose, the court looks into various facts such as the duration of cohabitation, existence of marriage ceremony, relationship with other family members, etc.
Let’s get back to the question at hand. The questioner lived with Korean national in Korea for 3 years considering themselves as each others spouses. The friends and family members perceived and treated them as a married couple. It is not clear whether they had a marriage ceremony but it is not a crucial factor in determining the formation of de facto marriage. Thus, it can be said she is a de facto spouse under Korean law.
As she is a de facto spouse, she is entitled to her contributory share of the assets acquired during the relationship. In this case, the boy friend’s earnings from the Internet business shall be the object of assets distribution, as they were acquired during the relationship. It is, however, hard to predict how much share she can claim for her contributory share due to lack of detailed information. Assuming she took every care of the housework and even supported her partner’s business, the attributable share would be around 40 percent of the net assets. Furthermore, assuming her partner’s cheating was the sole cause for the relationship breakdown, she is entitled to the consolation money as well.
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