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…)
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…)
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…)
Recently many foreigners asked me if it is true that Korean government banned adoptions by foreign adopters. I think this rumor came out after the chief of Ministry of Health, Welfare and Family Affairs had said “it should be sough after revitalization of domestic adoption”. The background of the chief’s comment was a recent homicide case where a U. S. adopters in Iowa killed 4 Korean adoptees. The adoption agencies misunderstood it as Korean government would ban foreign adoption. But constraining foreign adoptions and revitalizing domestic adoptions has been a long-time governmental policy ever since late 90’s-it is nothing new.
There has been no official changes on current regulations on foreign adoptions by Korean government. Moreover, the private adoption, not an institutional adoption, is regulated by the Civil Act and it has nothing to do with (more…)
According to the Korean Civil Act, a child shall succeed his or her mother’s family name, if the father is a foreigner. By the way, the newly amended Korean Civil Act, which has become effective from January 1, 2008, allows changing family name into another one. Article 781 (6) of the Act provides as follows:
Where there exists a need to alter the family name of a child for the welfare of the child, it may be changed with the approval thereof which the court grants upon a request of the father or mother or the child itself: Provided, That if the child is a minor and its agent by law may not make such a request, the request may be made by the relative provided for in article 777 or a public prosecutor.
Since the enforcement of the new Civil Act, I’m curious about whether Koren Court would permit the changing Korean family name into foreign family name such as “Smith” or “Brown” and so on. This is an important legal issue considering many Korean kids are being adopted to foreign parents and many Korean females are being remarried to foreign males with her Korean child.
Finally, Seoul Family Court answered this question. The court announced today that it had granted a Korean mother’s request to change her daughter’s family name from that of Korean biological father to her newly wedded Filipino husband’s family name. It was reported that the court took great pains to (more…)
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 (more…)