Category: Family Law

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

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The answer is yes, private adoption is legal in South Korea.  There are two types of adoption under the Korean legal system.  One is a private adoption and the other one is a foster care/institutional adoption.  Private adoption is an adoption that is initiated by a private placement from the birth parent without the involvement of any adoption agency.    The most important distinction of private adoption is that it is regulated by the Civil Code and it cannot be executed for a child in foster care or an orphanage.  Any child who is in foster care or an orphanage (“Child Under Social Protection”) should be adopted through the government-approved adoption agency.  This foster care adoption is regulated not by the Civil Code but by the Act on Special Case Concerning Adoption.

Although the two adoptions are regulated by totally different legal systems, many people often confuse these two.  As a foster care adoption must be taken care of by an adoption agency, non-foster care adoption, i.e. a private adoption, (more…)

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When you divorce under Korean law, there are subsequent legal matters of property division and consolation money.

A property division is a legal right of any spouse who is divorced under Korean law.  Some people think a spouse at fault is not awarded this right, but that is not true.  There was a court case where even a spouse who cheated on the wife can claim for property division.

The subject of division is any and every marital asset acquired and/or maintained during the marriage.  The debts are also divided.

When dividing the marital asset, the Korean court will decide and apply the contributor share of each party in the course of acquiring and maintaining the marital assets regardless of whose name is on it.  The most common ratio is 50:50.  But when the time of marriage is very short and the value of the assets is high, the Korean court has a tendency to limit the wife’s share at a very low level.

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1Recently our office represented U.S. parents whose adoption application had been denied by the Korean court.  The adoption was processed as an institutional adoption which is regulated by the Act on Special Cases Concerning the Promotion and Procedure of Adoption.  Institutional adoption, often called an orphanage adoption, is under more strict regulation and qualifications than a private adoption.  In this case, the 1st instance court of Seoul Family Court denied the U.S. parents’ adoption petition due to the concern caused by the adoptive parent’s past medical history of Obsessive-Compulsive Disorder (OCD).

Our office took this case at the appellate court level.  We reviewed the entire record and documents from the beginning and found that the lower court’s finding and the conclusion were not based on the true facts, but on the vague concern.  We even found a critical error in the translation of the ODC evaluation report provided by the Korean adoption agency.

We argued in front of the appellate judges that U.S. medical professionals had stated that the petitioner’s OCD did not harm his suitability as an adoptive parent.   He also pointed out that the U.S. government had (more…)

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Divorce could be one of the hardest decisions that people make during their entire life.  If people decide to divorce, one question they might ask their Korean divorce lawyer is how long it will take to get the divorce decree from the Korean Family Court. Fast divorce in Korea is what you might aim for, once you decided to divorce.

The short answer to this question is that it depends, the magic phrase that the lawyers would love to use in almost every dialogue.  The thing is, however, that it really depends on various factors, especially what types of divorce they are going through.  It could be a contested divorce or an uncontested divorce, which requires a totally different approach and care.

If it is an uncontested divorce which means the parties have been able to agree about all the issues involved in a divorce such as custody, child support, visitation, property division, and consolation money, the divorce decree can be obtained within 1 to 2 months.  That is pretty fast compared to other countries.  The parties don’t need to appear at the court so long as a Korean divorce attorney takes care of the case.  That is how our office in Seoul has been handling uncontested divorce cases.

If the divorce is contested, it requires more time for the Korean Family Court to render a divorce decree.  It should go through several hearings and extensive arguments between the parties. (more…)

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Unlike situations in some states in the U.S., a prenuptial agreement is somewhat in a grey area in the Korean legal system.

When the case later goes into a divorce by agreement, the prenup will be fully honored by the court.  It is legal and enforceable in Korea.

When the case, however, goes to a judicial divorce or a contested divorce, the Korean court applies a more strict standard in honoring the validity and application scope of the prenuptial agreement, which in many cases results in nullifying the prenuptial agreement.

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Q) I have a question about whether to renounce inheritance in Korea. My mother passed away a few months ago. There was no will. She was a Korean citizen and her husband too. All two children live in the U.S. and they are U.S. citizens. As we understand I have inherited a 2/7 share of my mother’s condominium and some cash in Korea. My stepfather and his Korean lawyer seem to up to no good. They both have sent conflicting and in my opinion false information to me. Especially his lawyer is threatening me that I would not able to sell my share so I had no choice but to give up or transfer my share. The stepfather asked me to sign POA and a Renunciation of Inheritance but I refused. They even said as I am not a Korean citizen, it would be much better renouncing inheritance for the sake of estate distribution. He said he will compensate me for my renounced share. Can you give me any advice?

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We have received many inquiries regarding the child support obligation and custody/visitation rights under Korean law.  Some cases are related to the divorcing parties and some to the unmarried couples who had babies during the relationship.

Establishment of Paternity under Korean Law

In case of unmarried couples, the birth father has no parental rights and obligations until his paternity is established in Korea.  That can be done in 2 ways.  One is to report himself as the father with the Korean local government.  And the other one is filing a paternity suit.

Determination of Child Care Issues

When the parental relationship is established, the unmarried couple needs to agree on child care issues such as child custody, visitation, and child support.  The same goes for the couple divorcing in South Korea.  When it is hard to reach an agreement, the matters will be heard and decided by the judge per the party’s filing a suit with the Korean family court.

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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 (more…)

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(Question) I have a question regarding my current situation with my ex-husband. He is a Korean national and working there in South Korea.  I lived there until 2014 when I came back to Washington and filed a divorce complaint here. Since then he has refused to speak with me.  This year my US lawyer duly served him with the paper but he just kept ignoring it.  At any rate, I got a divorce decree and child support ruling for my baby this April.  Now I am wondering how I can enforce my US ruling in Korea, knowing that he is living a  luxurious life and feels that he can just ignore his child and the responsibilities that come with it.

(Answer) I have to say that there is something unclear in this case.  If the court proceedings in Washington(WA) court have been duly made, i.e. (i) the WA court had proper jurisdiction and (ii) he was duly served, you can apply for its execution in Korea. Otherwise, you may initiate the whole process de nuvo in Korea.  The second threshold seems to have been met here. Thus, the real issue here rather is the first one.

Please note that the jurisdiction must be acknowledged in the view of Korean law, not the WA law. Thus, even though the WA ruling says the WA court has proper jurisdiction, the Korean court will (more…)

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On May 30, 2014, the Seoul Family Court handed down a ground-breaking decision which recognized the paternity between a Korean male and his children born out of lawful wedlock in the Philippines.  The decision marked the first time ever that a Korean Family Court adjudicated on the parentage of so-called “Kopino”, the term for those children born between a Filipina mother and a Korean father out of marriage.

The sociocultural issue surrounding the Kopino has been the criticism that the Korean fathers have abandoned Kopinos by leaving Philippines and providing no supports.  In this court case, the story was quite typical.  The Korean father met a Philippine woman back in 1997, when he was running a toy manufacturing business in Philippines.  In 1998 and 2000, they had 2 children.  But he couldn’t marry her, because he was already married to another woman in South Korea.  On April 14, 2004, he suddenly left Philippines alone and never contacted his children again.  He had never paid any support for his children.

In December 2012, frustrated by the irresponsibility of the Korean father, the children’s mother in Philippines had moved to bring a legal action in Seoul Family Court against the Korean father to establish the paternity of her children.  After 15-month litigation, the DNA test confirmed the blood ties between (more…)