[Updated on February 10th, 2020]
We have been frequently asked about getting divorced in Korea as foreigners. In this article, we provide you with the most essential information about divorcing in Korea.
- 1 Can Foreigners Get a Divorce Decree from the Korean Court?
- 2 Do I Have to Reside in Korea to Get a Divorce Decree from the Korean Court?
- 3 I Don’t Know Whereabouts of My Spouse. How Can I Get Divorced in Korea?
- 4 When Is Divorce Granted in Korea?
- 5 Can’t I Divorce Unless My Spouse Agrees to Divorce?
- 6 What Are the Legal Requirements for Judicial Divorce?
- 7 What is the Divorce Ground under Korean Divorce Law?
- 8 Can a Cheating Spouse Get a Divorce Decree?
- 9 What Subject Matters Are Involved in Divorce?
- 10 How Fast Can I Divorce in Korea?
- 11 Can I Stay in Korea with My Spouse Visa (F-6) after Divorce?
- 12 Will a Korean Divorce Be Recognized in My Home Country?
- 13 How about Annulment and Marriage Revocation?
Can Foreigners Get a Divorce Decree from the Korean Court?
Yes, Korean divorce law doesn’t treat foreigners differently. Foreign spouses who married Korean citizens and even foreign spouses who married non-Korean citizens can divorce in Korea.
One thing to note is the Korean courts’ rule of jurisdiction which applies to international divorce. Generally speaking, the Korean court will accept a divorce filing when the other spouse, i.e. the respondent, resides in Korea.
There is an exception to this. In certain situations, the foreign spouse can get a divorce decree from the Korean court even when the other spouse does not reside in Korea.
The nationality of the respondent or whether the marriage was registered in Korea does not matter for the Korean court to exercise its jurisdiction.
If you want to know more about the Korean rules of divorce jurisdiction, please click here.
Do I Have to Reside in Korea to Get a Divorce Decree from the Korean Court?
No, you don’t have to reside in Korea when getting divorced in Korea as foreigners. As we explained above, the residence of the petitioner doesn’t matter. We have represented numerous foreign clients who reside out of Korea in connection with the divorce case against spouses in Korea.
We are not saying that the residency and nationality of the petitioner have no meaning in divorce in Korea. They are related to another issue which is called a governing law. We will elaborate on that later in this article.
I Don’t Know Whereabouts of My Spouse. How Can I Get Divorced in Korea?
If you don’t know whereabouts of the spouse, you may consider filing for divorce ex parte. The Korean divorce court will review whether the petition tried his/her best efforts to locate the spouse. And when it is reasonably confirmed, the court renders a divorce decree ex parte, which means without serving nor hearing back from the respondent.
This kind of divorce is being used quite often as a way of getting divorced in Korea as foreigners. The relationship deteriorates and the spouse leaves Korea. And they lost contacts. In such a case, it is against the human right to insist on the basic rule that the defendant must reside in Korea in order to get divorced.
The Korean court also takes care of the right of the missing spouse. When the missing party finds a divorce decree was rendered without his or her participation, the party can choose to file an appeal with the Korean court. The appeal must be filed within 14 days.
When Is Divorce Granted in Korea?
Under Korean law, there are 2 types of divorce. One is a divorce by agreement and the other one is a divorce by court order.
When both parties agree to divorce, they can get a divorce decree from the Korean Family Court. The court doesn’t question the reason for divorce. There will be no judicial review on the divorce. What the court does is to verify the genuine intent of divorce from both parties.
In general, the parties must appear at the court. The parties, however, may hire a Korean divorce attorney so that they don’t be bothered to appear at the court.
When both parties can’t make an agreement, the party who wants divorce should file a divorce petition against the other party. This is called a judicial divorce in Korea. The judge will review whether the divorce claim should be granted. Basically, this is a trial. Thus, both parties should make arguments and present evidence to the presiding judge. Many cases, however, are settled during the court trials.
Can’t I Divorce Unless My Spouse Agrees to Divorce?
You can divorce even if your spouse disagrees with the divorce, as we explained above. Of course, as your case may lead to a divorce trial, you and your Korean divorce lawyer should persuade the Korean judge to render a divorce decree on your favor.
What Are the Legal Requirements for Judicial Divorce?
In case of a divorce by agreement, there are almost no legal requirements other than the existence of agreement of divorce.
When, however, people get divorced in Korea as foreigners through a judicial divorce, your divorce claim should meet the divorce requirements under the relevant law.
Then what are the legal requirements of divorce in Korea? Most foreigners seem to believe that the Korean divorce law would apply to their divorce suits. But that is not the case when it comes to international divorce.
In an international divorce, the Korean court will first have to decide which country’s law shall govern the case. In the court of Korea, the divorce case shall be governed in the following order:
- the same law of nationality of both spouses
- the same law of the habitual residence of both spouses
- the law of the place where is most closely connected with both spouses.
This means when a U.S. citizen files for divorce with the Korean court, there could be a case where the U.S. divorce shall apply at the Korean court. If you want to know more about which country’s divorce law shall apply to you, please check this article and this.
What is the Divorce Ground under Korean Divorce Law?
Korean divorce law does not recognize no-fault divorce. Thus, when your spouse contests your divorce and the Korean divorce law becomes the governing law of your judicial divorce case, you should prove that you have just cause of divorce. The just causes of divorce under Koren law are described in Article 840 of the Civil Code as follows:
1. If the other spouse has committed an act of unchastity.
2. If one spouse has been maliciously deserted by the other spouse
3. If one spouse has been extremely maltreated by the other spouse or his or her lineal ascendants
4. If one spouse’s linear ascendants have been extremely maltreated by the other spouse
5. If the death or life of the other spouse has been unknown for 3 years; or
6. If there exists any other serious cause for making it difficult to continue the marriage.
Interestingly enough, the most frequently referred divorce cause in the Korean court is Section 6 of Article 840. As we have explained above, South Korea is not the state of no-fault divorce. However, many Korean judges grant a divorce when the relationship is irretrievably broken for some reason. That is when Section 6 comes into play. This ‘irretrievably broken’ can be a financial issue, a difference of personality, or anything which makes it reasonably impossible to sustain normal marriage life.
Of course, if your spouse does not object to your divorce claim, the judge will grant the divorce without questioning the existence of justifiable divorce grounds. That is why many divorce lawsuits are being settled at the Korean divorce courts.
Can a Cheating Spouse Get a Divorce Decree?
We would not say it is impossible, but it would be very difficult for a cheating spouse to get a divorce decree under the Korean divorce law. That is because it is repeatedly confirmed by the courts that the spouse who is responsible for the breakdown of a marriage can NOT apply for judicial divorce.
However, there could be some exceptions to this. For example, the cheating could take place during the period when the marital relationship had already been irretrievably broken down. In such a case, the Korean court can grant a divorce by the cheating spouse’s filing.
Also, in a case where the other spouse who is irresponsible for the marriage breakdown also wants a divorce but does not accept the cheating spouse’s request for divorce by reason of mere obstinacy or revenge, the court would exceptionally accept the cheating spouse’s claim for a divorce.
What Subject Matters Are Involved in Divorce?
Like in other countries, when you get divorced in Korea as foreigners, you need to carefully review some other subsequent legal matters. Those will include a property division, child custody, child support, visitation and consolation money.
Under Korean divorce law, the court will divide the marital assets when the parties cannot reach an agreement. Korea is not a state of community property. The Korean law divides the marital assets fairly according to the contribution of each spouse. You can find more detail in our article on property division under Korean law.
You may consider entering into a prenuptial agreement before the marriage to separate and protect your personal assets from the spouse’s potential claim of property division. The prenuptial agreement, however, has limited legal effect in Korea. So, you should better consult with a Korean divorce lawyer before doing it.
Read more: Prenuptial Agreement under Korean Law
How Fast Can I Divorce in Korea?
Court proceedings take time. However, when the parties agree to divorce, the divorce could be finalized within a month or two.
In case of a contested divorce, it usually takes 5 to 9 months to get the ruling from the Korean court.
Can I Stay in Korea with My Spouse Visa (F-6) after Divorce?
When you get divorced in Korea as foreigners, one thing you should be careful about is your Korean spouse visa. Usually, your Korean spouse visa F-6 becomes void when you are divorced. There is, however, one exception to this. You can stay in Korea even after the divorce when the Korean spouse is liable for the divorce.
Many foreign spouses simply sign a divorce paper in the hope that it would be the best way to get out of the marriage without causing any further stress. However, if the foreign spouse has a plan to stay in Korea further and they divorce by reason of the Korean spouse’s fault, it is not a good idea to do a divorce by agreement. That s because the divorce by agreement doesn’t clarify the important fact that the Korean spouse is liable for divorce.
That said, we always advise our foreign clients to do a divorce mediation or a divorce trial. By doing so, the foreign spouse can get a court decree which certifies the Korean spouse is the liable party. The Korean immigration office grants the extension of an F-6 when this court paper is submitted. The foreign spouse can even apply for a permanent visa when other requirements are met.
Will a Korean Divorce Be Recognized in My Home Country?
You should consult with your local lawyers regarding how your county is dealing with the recognition of foreign divorce. It is known that the duly made divorce decree by the Korean court is recognized in many countries. For example, the U.S.A., Canada, Japan are all recognizing the Korean divorce decree. This means that the Korean divorce decree is valid in your country so that you don’t need to file for divorce in your country all over again.
The Korean court also recognizes foreign divorce decree under certain conditions. The Korean court had previously recognized and granted the enforcement of the Washington state child support ruling in Korea. You can find more detail by reading our article on the recognition of U.S. divorce and a child support ruling in Korea.
How about Annulment and Marriage Revocation?
The Korean law recognizes an annulment and marriage revocation. Please check our anther article titled “(Q&A) I Want to Know about Annulment and Revocation of Marriage under Korean Law“.
If you have any questions about the Korean divorce matters and want to speak directly with our Korean qualified English speaking lawyer, please click the contact button below. A real Korean lawyer, not a U.S. attorney hired by a Korean lawyer nor just an English-speaking staff, will help you competently.
Also, you can find a stack of legal information and articles on Korean family law, written by a Korean licensed lawyer, by clicking here.
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Because of the generality of this update, the information provided herein, which may or may not reflect the most current legal development, may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.