Ask Korea Law

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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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[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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[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


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[Q&A: Family Law] When Foreign Couples Divorce and Get Married in Korea

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 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 Korean court.

Regarding the governing law, the divorce case shall be governed in the following order:

  1. the same law of nationality of both spouses
  2. the same law of habitual residence of both spouses
  3. 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 Continue reading


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[Q&A] My Spouse Won’t Sign the Divorce Agreement, How Can I Get the Divorce Finalized in Korea?

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 parent 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 which has a jurisdiction over the residence where she resides in order for the divorce to be finalized in Korea. Of course, Continue reading


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Claim for Division of Property under Korean Divorce Law

Korean divorce law allows a claim for division of property to any party of divorcing couple.  It means even the spouse who is responsible for the marriage breakdown has the right, too.

Division of property shall be determined by the parties’ agreement first.  If no agreement is made or if it is impossible to reach an agreement, the Family court shall, upon request of the parties, determine the amount and method of division.

One thing which should be noted is that the object of the division is only  the marital assets which means the “property acquired by cooperation of both parties during the marriage”.  That mens, if the property in issue is acquired by only either party’s effort and funds, then it shall not be Continue reading


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Do I Have to Get Divorced to Become a Sole Child Custodian under Korean Law?

Recently I got a question from a U.S. citizen living in the states. He has a Korean wife and a son. He’s currently living separately from the wife and son in Korea. The wife refuses his contact with the kid. He tries to get the custody but is not sure about filing a divorce law suit right away.

A child custody has two meanings in Korea.  One is a right to make decisions for the child (so-called parental authority) and the other is right to foster the child.

Getting divorced is not necessarily required to have the “right to foster” under Korean law. He can request the Korean Family Court to designate him as the sole child fosterer, maintaining his marriage.  The court will consider certain factors such as child’s age, past and current life style, occupation and standard of living of both parties and so on in deciding who is going to be a right fosterer in terms of the child’s welfare.

Regarding the expense of bringing up a child, if he is designated as a sole fosterer, the wife shall pay the certain proportion of total expenses of bringing up a child.

In a case where he fails to be designated as a sole fosterer by the court, he shall be entitled to have a visitation right according to Korean law. He can request the court to prevent his wife from interrupting his regular visitation to his Continue reading