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 the 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 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 an application to the Minister of Justice of South Korea for the assistance of the return of a child wrongfully abducted to South Korea. The case asserting the return of the child pursuant to the Convention is under the exclusive jurisdiction of the 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 (more…)
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. (more…)
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:
- If one of the parties has been sentenced to punishment of not less than suspension of qualification;
- If one of the parties has been adjudicated as incompetent or quasi-incompetent after (more…)
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 liability under judgment. This shows why provisional attachment is highly required to secure the judgment effectively.
Read More: Korean Lawyer Explains Debt Collections In South Korea – Overview
Provisional attachment is a judicial measure available to anyone who has a monetary claim to lock down certain assets. It, depending on the type of court order, prevents the debtor from selling assets or enables the creditor to secure his interest in the debtor’s asset regardless of the sale by the debtor, 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 (more…)
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 the 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 the Korean Supreme Court recognized and approved the Canadian court’s divorce/asset distribution/child support/alimony order. That order was issued from the Superior Court of Justice in Ontario.
As a matter of law, the Korean court recognizes a foreign ruling pursuant to the rules of foreign judgment recognition: (i) the foreign court has 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 clearly declared that South Korea and Ontario have a mutual guaranty.
What is more important in this ruling is that the Supreme Court recognized the foreign court’s alimony order. Under Korean divorce law, there is no legal concept of alimony in a divorce. Therefore, some may argue that as the alimony is not the legal right established in Korea, recognizing the foreign court’s alimony ruling in Korea would violate the social order of South Korea. But, (more…)
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 married 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 and more importantly you might not be familiar with how the divorce works 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 the 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, the Korean court quite often issues a divorce ruling when it founds the marriage was irretrievably broken. Common grounds (more…)
Q) I have some questions about marriage and divorce law in Korea regarding two non-Koreans living in Korea. Can they divorce and re-marry in Korea?
A) The Korean court hears an international divorce lawsuit basically if the defendant resides in Korea. So long as the defendant resides in Korea, the duration of his residence does not matter. Even if the plaintiff does not reside in Korea, she can file a divorce lawsuit to a Korean court. If the defendant does not reside in Korea, the divorce lawsuit can be accepted only when the plaintiff fails to locate the defendant or the defendant answers the lawsuit filed under the Korean court.
Regarding the governing law, 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.
If one party is a Korean national having a habitual residence in Korea, notwithstanding the foregoing, the law of South Korea will be the governing law.
The Korean court shall decide (more…)
Q) Most of my friends say if you’ve got separated for many years, it is easy to apply for a divorce. Is that true?
A) Basically being separated for many years is, by itself, not a justifiable cause for a judicial divorce under Korea divorce law. The key issue will be why both of you have been separated. If it is because of your husband’s violence and/or maltreatment, you’re surely entitled to a divorce decree from a Korean Family court, even if you’re separated for only 1 day. On the contrary, if you’ve maliciously (more…)
Q) I’m a U.S. citizen married to a Korean woman having one child. Currently, we live apart and our child’s living time is split between us. I wouldn’t mind this situation if I knew she could be trusted to care for him safely and properly. But she can’t do this. I’m incredibly worried about his present safety and his emotional development. We have the papers but she won’t sign them, she uses our marital situation to manipulate me. Is there any way I can file for divorce without her consent? If so, where can I do this? Also, what would I need to do to obtain sole parental authority after the divorce?
A) If she keeps refusing to sign the divorce agreement, you have no choice but to file a divorce lawsuit with a Korean court that has jurisdiction over the residence where she resides in order for the divorce to be finalized in Korea. Of course, (more…)
Recently we got a question regarding the s0-called “waiting-period” of remarriage under Korean family law. There is no such a thing like “waiting-period” which prohibits a divorced person to remarry within certain period. Actually there had been a clause of waiting period in Korean Civil Code, but (more…)