Question) I am a US citizen and have been living with my Korean boyfriend for about 3 years in South Korea. We loved each other and agreed to marry, but we were so busy having 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 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 and/or living together as a husband and a wife is not enough for the establishment of legal marriage.
What Is the Common-Law Marriage in Korea?
If the parties live together without the marriage report and consider themselves each other’s spouse, it is called a common-law marriage or a de facto marriage. The Korean law recognizes the common-law marriage.
When can a common-law marriage be legally established under Korean law? The court’s recognition of common-law marriage is subject to the finding of both (i) mutual intent to form a marital relationship, and (ii) the existence of substance of marital life. For this purpose, the court looks into various facts such as the duration of cohabitation, the existence of a marriage ceremony, relationship with other family members, etc.
What Rights Do I Have under Common-Law Marriage in Korea?
Common-law 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 dissolution of the common law marriage relationship, Korean law applies almost identical protection to the parties.
Right of Property Division
First, the Korean law grants the right of property division to each party of the common law marriage. Each party is entitled to some share of the assets acquired during the relationship according to his or her contribution. Even if a party who is solely responsible for the relationship breakdown can still claim for the division of the property.
RIght of Consolation Money
Second, a party can seek 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 the duration of the relationship, the extent of hardship the party suffered, and so on.
An interesting thing about the dissolution of common-law marriage is, unlike a divorce under Korean law, it does not require a justifiable cause for the dissolution. This means a party can unilaterally terminate the common-law marriage without any cause. But, please note that, if he or she terminates common-law marriage without cause, the party could be liable for the consolation money to the other party.
Let’s get back to the question at hand. The questioner lived with a Korean national in Korea for 3 years considering themselves as each other’s 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 the common-law marriage in Korea. Thus, it can be said she is a common-law marriage 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 subject of assets distribution, as they were acquired during their relationship. It is, however, hard to predict how much share she can claim for as her contributory share due to a 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 of the relationship breakdown, she is entitled to the consolation money as well.
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