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…)
[Updated: August 7, 2020]
Who Shall Have a Right of Property Division in Korea?
Korean divorce law allows a claim for the division of property. It is a statutory right of any party divorcing under Korean divorce law. It means even a spouse who is responsible for the marriage breakdown has the right, too. 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 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 the petition by the party, determine the amount and method of division.
Recently we got a question about whether the Korean court permits a divorce filing even when both parties are foreign nationals. The questioner was in a situation where she lived in Korea but the spouse did not. Here is a short and general answer.
In principle, the Korean court accepts international divorce filing only when the defendant has a residence in Korea, even though there could be some excepts to this rule of thumb. The Supreme Court of South Korea, however, held that as an exception to this general rule the court should accept the divorce filing when (i) the plaintiff fails to locate the defendant or (ii) the defendant who has no residence in Korea answers the lawsuit filed in a Korean court.
Thus, if you do not know where the spouse currently lives but still need to get divorced, you can file a divorce lawsuit to a Korean family court. This is quite helpful to the foreign people who had been married to Korean persons but moved back to their home countries with the marriage not working well. Or a foreign person living in Korea whose spouse, who is also a foreigner, left Korea permanently can benefit from this judicial policy of Korean family court. In this regard, our office had represented a Canadian male and successfully got a divorce decree from