Ask Korea Law

Published by Chung & Partners since 2008


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[Q&A: Family Law] What Legal Rights Do I Have under the De Facto Marriage in Korea? – Introduction to How the Korean Law Treats De Facto Marriage and Its Resolution

Question) I am a US citizen and have been living with my Korean boy friend for about 3 years in South Korea.  We loved each other and agreed to marry, but we were so busy to have 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 a 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 is not enough.  If the parties live together considering themselves each other’s spouse without reporting the marriage, it is called a de facto marriage.  A de facto 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 resolution of the de facto marriage relationship, the Korean law applies almost identical protection to the parties.

First, the Korean law grants the right of property division to each party of the de facto marriage.  Each party is entitled to the share of the assets acquired during the relationship pursuant to his or her contribution.  Even if the party is solely responsible for the relationship breakdown, the person is still entitled to.  Second, a party can seek a 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 Continue reading


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South Korea Became the 89th Contracting Nation to the Hague Child Abduction Convention

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On December 13, 2012, South Korea acceded to the Convention on the Civil Aspects of International Child Abduction (“Hague Child Abduction Convention”), whereby South Korea became the 89th contracting nation to the convention.

Concluded in October 1980, the Hague Child Abduction Convention is a multilateral treaty aiming at prompt return of wrongfully removed or retained child from one contracting nation to another.  Under the Convention, any person or institution claiming that a child has been removed or retained in breach of custody rights may apply to any other contracting nation for assistance in securing the return of the child.

As with the Convention entering into force on March 1, 2013, South Korea enacted a subsequent domestic legislation concerning the implementation of the Convention.  Under the new legislation, the foreign spouse who is the citizen of the contracting nation of the Convention can make application to the Minister of Justice of South Korea for the assistance of return of child wrongfully abducted to South Korea.  The case asserting the return of the child pursuant to the Convention is under the exclusive jurisdiction of Seoul Family Court.  The court may issue a preliminary injunction to maintain the status quo.  Also the court may dismiss the application for the return of the child when, among others, it has passed 1 or more years since the abduction and the child has already adjusted herself into the current environment.  The person who Continue reading


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[Q&A: Family Law] I Need a Divorce But Don’t Know Her Whereabouts in Korea – Korean Divorce Decree in Ex Parte and Recognition of Foreign Divorce Decree in Korea

Q) I have a friend who is living in New York.  He is a US Citizen who has resided in New York for several years. His wife is from South Korea, but they have not seen each other since 2009. I don’t believe there is any animosity; he just wants to file for divorce since they are no longer in contact. My friend has not been able to get in contact with her for some time, and her family is unsure of her whereabouts as well. The parties were married in South Korea. My friend has been residing in New York so he can file here for divorce; however I am concerned about having proper service there in Korea, especially since we are unsure of her whereabouts. I believe it may be beneficial for my friend to contact a Korean Attorney. I also need to make sure that his wife did not already file for divorce in South Korea or else us filing her is a duplication of services.

A) If your friend is unable to locate his wife in Korea and concerned about the issue of proper service when filing for divorce in New York, he could have an idea to file for divorce in Korea.  In a case where the plaintiff does not know the whereabouts of the defendant, the Korean court issues a divorce decree in ex parte.   Continue reading


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Legal Liability Relating to Termination of Marital Engagement under Korean Law

We have received questions regarding this issue quite often.  Actually our office had taken a civil case arising out of termination of marital engagement between Korean and non-Korean, and successfully defended our client from civil liability.  So we think it is a good time to look into what happens in this kind of legal dispute and its legal implication.

Firstly, it must be mentioned that, under Korean law, if a matrimonial engagement is duly made, no party can legally terminate or rescind the engagement without justifiable causes.  This, however, does not mean the engagement shall be enforced regardless of the objection from the other party once the engagement agreement was made.  Rather, it just means if one party terminates the engagement without cause, he or she is obliged to pay monetary compensation to the other.

Then what are  the “justifiable causes” to terminate the engagement?  The law sets forth justifiable causes as follows:

  1. If one of the parties has been sentenced to punishment of not less than suspension of qualification;
  2. If one of the parties has been adjudicated as incompetent or quasi-incompetent after Continue reading


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Provisional Attachment of Assets under Korean Law – How to Secure Your Monetary Claim in Korea

Let’s assume a creditor has a monetary claim against a debtor in Korea but the debtor refuses to pay it.  The creditor would proceed to file a lawsuit to get a judgment to collect his claim.  Unfortunately, however, the chances are that, knowing the complaint was filed, the debtor would try to conceal or transfer his assets to evade from the judgment to be made later.  This shows why provisional attachment is highly required to secure the judgment to be obtained.

Provisional attachment is a judicial measure available to anyone who has a monetary claim to lock down certain assets to keep the debtor from selling or giving them away until the court issues a judgment on the merit. The creditor can, and usually does, seek a provisional remedy before she files a complaint on the merit.  So, this is a very powerful weapon for the creditor.  For example, as many Korean creditors do, if the creditor succeeds in putting a provisional attachment on the debtor’s bank account, the debtor would not be able to use the money and could face several penalties regarding its banking/financing transactions with the bank.  This could heavily deteriorate the ability for a small com­pany to con­duct business, which makes the debtor Continue reading


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[Q&A: Family Law] Is My Canadian or U.S. Divorce Decree Including Alimony and Child Support Order Enforceable in Korea?

Q) I filed for divorce in Ontario, Canada.  My husband lived in Canada and he was duly served with the court’s documents.  I will have a final divorce ruling from Canadian court including child support and alimony order soon.  But the issue is he will probably leave Canada and head to South Korea after the ruling is issued.  Will the Korean Courts recognize the Canadian court order in order to enforce his performance of child support and alimony payment?

A) There is a case where Korean Supreme Court recognized and approved the Canadian court’s divorce/asset distribution/child support/alimony order.  That order was issued from Superior Court of Justice in Ontario.

As a matter of law, Korean court recognizes foreign court’s divorce ruling so far as (i) the foreign court has a jurisdiction over the case in perspective of Korean law, (ii) the defendant was duly served, (iii) the ruling of the foreign court does not violate the social order of South Korea and (iv) there exists a mutual guaranty for recognition of rulings between the two jurisdictions.  For the last element, the Korean Supreme Court held that South Korea and Ontario have a mutual guaranty.  What is more important here is that the Supreme Court recognized foreign court’s alimony order.  Under Korean law, there is no legal concept of alimony in divorce.  Therefore, some may argue that as the alimony is not the legal right established in Korea, recognizing foreign court’s alimony ruling in Korea would violate the social order of  South Korea.  But, Continue reading


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[Q&A: Family Law] I Am Not Living in Korea. Can I File for Divorce in Korea? If Can, What Should I Know about Korean Divorce Law and Its Proceedings?

Q) I wish to file a divorce from my wife.  Our relationship ended in practice earlier this year and she returned to Korea in August. We were marred in Korea. I wonder how can I file for our divorce as she is in Korea but I am not living in Korea. I would prefer uncontested but would go with a contested divorce if necessary. But I am living in the UK. Can you tell me what process I should pursue?

A) At the outset, as your wife lives in Korea, you can file for divorce to a Korean Family Court.  Even if your wife does not have a Korean nationality, it is still the same. But you probably need to hire a Korean legal counsel who can represent you in the court, as you are not living in Korea.  With that said, if you hire a Korean divorce attorney, you are not required to come to Korea nor to attend the court.  Your Korean divorce attorney will handle everything for you.

The next issue will be which nation’s divorce law will govern your case, when you file for divorce in Korea.  If your wife is a Korean, then the Korean divorce law shall be the governing law.  If your wife is a UK citizen, then the divorce law of UK shall apply.

When the Korean divorce law becomes the governing law, in order to get a divorce decree, you have to show some types of justifiable causes for divorce under Korean law such as domestic violence, unchastity, etc.  Not surprisingly, Korean court quite often issues a divorce ruling when it founds the marriage was irretrievably broken.  Common grounds Continue reading