We have been frequently asked about how to get divorced in Korea as foreigners. In this article, our Korean divorce lawyer explains the most essential information about Korean divorce law and practices.
- Can Foreigners Get a Divorce Decree from the Korean Court?
- Do I Have to Reside in Korea to Divorce?
- I Don't Know Whereabouts of My Spouse. Can I Still Divorce in Korea?
- Which Country's Law Shall Apply?
- Types of Divorce under Korean Law
- Can't I Divorce Unless My Spouse Agrees?
- What Legal Grounds Are Required for Judicial Divorce?
- Can a Cheating Spouse Get a Divorce Decree?
- What Subject Matters Are Involved in Divorce?
- How Fast Can I Divorce in Korea?
- Can I Stay in Korea under Korean Spouse Visa (F-6) after Divorce?
- Will a Korean Divorce Be Recognized in My Home Country?
- How about Annulment and Marriage Revocation?
Can Foreigners Get a Divorce Decree from the Korean Court?
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 if 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 jurisdiction in the case of international divorce, please click here.
Do I Have to Reside in Korea to Divorce?
No, you don’t have to reside in Korea to get a divorce decree from the Korean court. As we explained above, the residence of the petitioner doesn’t matter. We have successfully represented numerous foreign clients who reside out of Korea in getting a divorce decree against their spouses living in Korea or, sometimes spouses who were missing.
We do not say that the residency and nationality of the petitioner have no relevance in divorce in Korea. They matter in 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. Can I Still Divorce in Korea?
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 missing spouse.
This kind of divorce is used quite often among international couples in Korea. The relationship in Korea deteriorates and the spouse returns back to his/her home country. And they lost contacts. In such a case, the Korean court regards it as against the human right to not accept a divorce filing by the left-behind spouse in Korea.
It should also be noted that the Korean court also takes care of the right of the missing spouse. When the missing spouse later finds a divorce decree was rendered without his or her participation, the missing party can file an appeal with the Korean court. This appeal must be filed within 14 days.
Which Country’s Law Shall Apply?
Choice of Law
Most foreigners seem to believe that the Korean divorce law would apply to their divorce in Korea. But that is not the case.
In the court of Korea, the divorce case shall be governed in the following order:
- the law of Korea, if one spouse has a Korean national having a habitual residence in Korea
- 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.
For example, if a British husband files for divorce against a Korean wife living in Korea, the Korean divorce law shall apply. If a Japanese couple divorces in Korea, the Japanese divoce law shall apply. If a Canadian husband files for divorce against a British wife, and they both live in Korea, the Korean divorce law shall apply.
Also, it should be noted that Korea recognizes renvoi. Renvoi is a subset of the choice of law rules. If the above rules designate the law of a certain foreign country, and that foreign country’s choice of law rules designate back the law of Korea, eventually the Korean divorce law becomes the governing law.
This is particularly relevant to American couples. In the United States, the law of the forum applies to divorce cases. Thus, when a U.S. couple divorces in Korea, although their law of common nationality is the law of the U.S., the Korean divorce law shall apply.
Types of Divorce under Korean Law
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.
Divorce by Agreement
In case of a divorce by agreement, the court doesn’t question the reason for divorce. There will be no judicial review of the divorce. What the court does is verify the genuine intent of divorce from both parties.
It should be noted that, however, when both parties are foreigners, they can’t use a divorce by agreement. They should go through a divorce by court order.
Also, some countries do not recognize a non-judicial divorce from a foreign country. So, even when a foreigner married a Korean national, we recommend a divorce by the court order.
Divorce by court order
When both parties can’t agree, the party who wants divorce should file a divorce petition against the other party. This is a judicial divorce.
The judge will review whether the divorce claim should be granted. 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.
As discussed already, international couples who already agreed to divorce can use this judicial divorce process. As they do not contest the divorce, the procedures become very simple. Even better is, that if the foreign spouse hires a Korean divorce lawyer, they both do not need to appear in the Korean court. It usually takes 1 to 2 months to get the decree.
Can’t I Divorce Unless My Spouse Agrees?
You can divorce even if your spouse disagrees with the divorce. You have to file for judicial divorce. You and your Korean divorce lawyer should persuade the Korean judge to render a divorce decree in your favor.
What Legal Grounds Are Required for Judicial Divorce?
Korean divorce law does not recognize no-fault divorce. Thus, when your spouse contests your divorce and the Korean divorce is the governing law, you should prove that you have just cause for divorce.
The just causes of divorce under Koren law are described in Article 840 of the Civil Code as follows:
- If the other spouse has committed an act of unchastity.
- If one spouse has been maliciously deserted by the other spouse
- If one spouse has been extremely maltreated by the other spouse or his or her lineal descendants
- If one spouse’s linear ascendants have been extremely maltreated by the other spouse
- If the death or life of the other spouse has been unknown for 3 years; or
- 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. As explained above, South Korea is not a state of no-fault divorce. Many Korean judges, however, 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 contest 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 marriage breakdown is not qualified to apply for judicial divorce.
However, there could be some exceptions to this. For example, the cheating could take place after the marital relationship had been irretrievably broken down. In such a case, the Korean court can grant a divorce per the cheating spouse’s petition.
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 only because 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 divorce in Korea as a foreigner, you need to carefully review some other subsequent legal matters. Those 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. Korean law divides 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 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 the case of a contested divorce, it usually takes 5 to 9 months to get the ruling from a court of the first instance.
Can I Stay in Korea under Korean Spouse Visa (F-6) after Divorce?
When you get divorced in Korea as a foreigner, one thing you should be careful about is its impact on your Korean spouse’s visa.
Usually, a Korean spouse visa F-6 becomes void when you are divorced. There is, however, one exception. You can stay in Korea with F-6 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 after the divorce and they divorce due to the Korean spouse’s fault, it is not a good idea to do a divorce by agreement. That is because the divorce by agreement doesn’t clarify the important fact that the Korean spouse is liable for divorce, which the Korean immigration office requires at the time of visa renewal.
That said, our Korean divorce lawyers 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 domestic lawyers regarding how your country deals with the recognition of foreign divorce. It is known that the duly made divorce decree by the Korean court is recognized in many countries including the United States, Canada, and Japan.
For example, divorce decrees from Korean Family Courts are accorded nearly equal recognition in the US state courts, based on the concept of comity. This means that the Korean divorce decree is valid in your country so you don’t need to file for divorce in your country all over again.
The Korean court also recognizes foreign divorce decrees under certain conditions met. 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?
Korean law recognizes an annulment and marriage revocation. Please check our article titled “(Q&A) I Want to Know about Annulment and Revocation of Marriage under Korean Law“.
If you have any questions about 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.