[Updated on February 10th, 2020]
We have been frequently asked about getting divorced in Korea as foreigners. In this article, we provide you with the most essential information about divorcing in Korea.
Can Foreigners Get a Divorce Decree from the Korean Court?
Yes, 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 when the other spouse does not reside in Korea.
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.
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.
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…)
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.
We would not say having a prenuptial agreement is meaningless. On the contrary, having a prenuptial agreement is better than having no such agreement. Even in case of a judicial divorce or a contested divorce, the existence of a prenuptial agreement could work for your advantage. Although the court is not bound by the prenuptial agreement, it takes account of the prenuptial agreement when deciding which property is included in the subject of property division, i.e. marital assets.
Read More: Getting Divorced in Korea as Foreigners: The Ultimate Guide
If you have any questions regarding this article or you are in a similar case/situation, please visit our Legal Consultation center or send your inquiry email by clicking here. Our Korean qualified lawyer will answer your inquiry.
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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.
It is first noted that the basic law in Korea regulating labor standards is the Labor Standards Act (“LSA”), ”), which is applicable to the employers with at least 5 employees. As for the employers with less than 5 employees, only a part of LSA provisions would be applicable. And, LSA provisions relating to our comments below are not applicable to these employers with less than 5 employees. The only statutory restriction for a employer with less than 5 employees is the prohibition of dismissal during a particular period of time such as employee’s illness and childbirth. That said, please bear in mind that our comments below are only provided for employers and employees at a workplace with at least 5 employees.
Article 23 of LSA requires a “justifiable cause” if and when an employer takes disciplinary actions, including termination of employment, with regard to its employees. Korean courts have held that a “justifiable cause” refers to such causes as criminal offence, serious illegal acts, and gross negligent acts, etc. which would make maintaining of the relevant employment relationships no longer possible under generally accepted public notions.
Especially, because a termination of employment is the most extreme measure, taking away an employee’s means of making a living, Korean courts are known to be very strict in applying the above-noted criteria, when it determines whether a particular termination is justified. Thus, (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…)
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…)