Category: Family Law

Dealing with a marriage, divorce, child custody, adoption, etc.

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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?

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.

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(Last update on November 1, 2022) Under the Korean inheritance law, the inheritance comes to fruition immediately when a person is deceased. The Korean inheritance law, the Part V of the Civil Act, provides who shall become the inheritor and beneficiary of the property of a deceased person, i.e. estate.

The inheritor and beneficiary, however, shall not always take everything from the estate. There are separate rules and restrictions on the distribution of the estate in South Korea.

In this article, we will explain to you the basic rules and practices of inheritance in Korea.

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[Updated on October 29, 2021]

Q) I am a US citizen who married a Korean wife. We moved to California 5 years ago.  This year, she suddenly left and refused to return home with our son.  It has been 3 months but she flat out denies my right to be with him.  I am not abusive nor have I ever been violent towards her or our son.  I have already sent in my Hague Child Abduction Convention application to the U.S. State Department to start the Hague process. I would like to know if your firm has handled Hague cases for International Parental Child Abduction.

South Korea Is a Contracting Nation to Hague Child Abduction Convention

On December 13, 2012, South Korea had become the 89th contracting nation to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Child Abduction Convention”, please refer to our previous article).

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Child support is a legal obligation of a non-custodial parent. It usually matters when the couple is divorced. But a separated spouse can ask for child support, too.

Read more: Getting Divorced in Korea as Foreigners: The Ultimate Guide

When the parties cannot agree on the amount of child support, the court makes the decision. In this regard, the Korean court has an internal rule to calculate the child support amount in Korea. Although this internal rule is not mandatory, many judges refer to this before making a decision. So it is worth looking into. It can give you a general idea of how the Korean court determines the child support amount.

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Globalization has brought a unique situation to our assets management. Your asset portfolio is diversified. Now you live in New York, but you own a condominium in Seoul at the same time. Having a bank account and stocks in Korea is very common for expats and people who have family in Korea. You should manage them while you live each and every day. And you should also have an estate plan in place regarding how your foreign assets shall be managed and distributed to your loved ones when you pass away.

Every jurisdiction has its own laws and procedures to govern the decedent’s assets located within its territory. Thus, having an estate plan pursuant to the New York Law does not guarantee that your wishes and priorities in the estate plan shall be honored in a foreign country. That’s why you need to set up a foreign estate plan according to the relevant foreign law.

In this article, our Korean estate planning lawyer explains the basics of estate planning in Korea. We will discuss typical instruments under Korean law that you can make use of: a will, a living trust, and a power of attorney.

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This week a story of an overseas adoptee caugth our attention. She had succeeded in finding her birth father in South Korea after getting a DNA test order from the Korean Family Court. The news calls for an attention how hard it is for some undocumented adoptees to find their birth parents in Korea.

It is true that back in old days Korean government was not so strict in regulating the foreign adotion. Some children had been adopted without having the corrent documentations about their origins.

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“I am an adoptee from South Korea to the U.S. Currently I live in the U.S.  Recently I found my biological parents died in South Korea.  He is survived by his wife and 2 sons.  He had businesses in Korea.  Can an adopted child inherit from biological parents in Korea?  I have never met or spoken to his wife and sons and so I don’t know if he had a will written.  What are my inheritance rights under Korean law?”

Everything Boils Down to Whether it is Full Adoption or Simple Adoption

A legal child is entitled to inheritance from his/her deceased parent. When the child is adopted, some jurisdictions treat the adoption as disconnecting the legal relationship with the biological parent, and some jurisdictions don’t. We call the former as a full adoption and the latter as a simple adoption.

As you can understand from the general idea of inheritance, an adopted child can inherit from biological parents in Korea only when the adoption is regarded as (more…)

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Q) I’m an American and my wife is Korean. She is living in Korea and I have returned to the USA. We have agreed to divorce. However, I can’t go back to Korea just to sign the papers. Is it possible to have her do it? Or have her email me the divorce agreement for me to sign and return to her? I just want to know how to divorce when the spouse doesn’t live in Korea.

Spouses Can Live in Different Country to File for Divorce in Korea

In general, the Korean court requires at least one spouse to reside in Korea in order to process the divorce filing. Thus, the fact that one spouse resides in a foreign country doesn’t bar a spouse living in Korea to file for divorce. The issue, however, lies in a procedural matter.

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(Case)

I am a U.S. citizen.  I currently have a very complicated inheritance case in South Korea.  My father passed away 10 years ago in the U.S. and his two Korean half brothers in Korea are currently suing my family for my father’s portion as well as my father’s sister’s portion as she passed away many years ago.  They are claiming they want 60% of my father’s portion and all of my aunt.  There is no will left by my grandfather.  They are claiming that they took care of the grandfather who was a Korean citizen.  However, when my father was alive he also sent money regularly to his father and his half brothers but as it was more than 10 years ago I am uncertain how to proceed.

Governing Law Issue

Inheritance gets more complicated when it has some sort of multinational issues.  Here the Korean heirs sued the U.S. heirs at the Korean court.  The deceased was a Korean national and it is probable that the majority of the estate is located in Korea.  That might be one of the reasons why this case should be litigated in Korea, not the U.S.

In an international inheritance case, we first need to find out which country’s law shall apply.  As this case was filed with the Korean court, the Korean court decides this issue pursuant to their own choice of law doctrines.  According to the Korean choice of law, the law of the deceased’s country shall become the governing law.  That means, in our case, the Korean Inheritance law shall apply. (Please refer to this article regarding the basic of Korean Inheritance law)

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Q) I was born in Korea but married a US citizen, moved to the US and am now a US citizen.I learned that my father has passed away in Korea and am looking for some assistance on accepting or renouncing the inheritance.  I was the forth child. After I was born, my parents divorced and the first two children went with my father and the third child and I went with my mother. My father remarried and had three other children. My mother and the second wife are still alive.  I was told that the estate includes property (house) and some savings.  The second wife wants to live in the house until she dies and it sounds like my other siblings agreed.  My half brother with whom I’ve had no previous contact called and said they need my cooperation to proceed.  He asked me to sign some Korean document which I don’t understand. I’m trying to decide whether to accept or renounce the inheritance and how to accomplish either of those in the easiest way possible.

A) Under Korean inheritance law, currently you are the co-owner of the total estate without any registration or report.  Other heirs cannot distribute, dispose of the estate without your consent.

The heirs in Korea might be in a hurry to pay the inheritance tax which might be one of the reasons why he contacted you.  But, you should not give them the power of attorney or any authorization/consent until you have the information you need which includes your deceased parent’s name, Korean residence registration number and the detail of the estate.  If he refuses to provide that, I think that is a red flag.  At least he should let you know the Korean resident registration number, which is (more…)