We have been frequently asked about how to get divorced in Korea as foreigners. In this article, our Korean divorce lawyer explains the most essential information about Korean divorce law and practices.
Can Foreigners Get a Divorce Decree from the Korean Court?
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 if the other spouse does not reside in Korea.
“I am an adoptee from South Korea to the U.S. Currently I live in the U.S. Recently I found my biological parents died in South Korea. He is survived by his wife and 2 sons. He had businesses in Korea. Can an adopted child inherit from biological parents in Korea? I have never met or spoken to his wife and sons and so I don’t know if he had a will written. What are my inheritance rights under Korean law?”
Everything Boils Down to Whether it is Full Adoption or Simple Adoption
A legal child is entitled to inheritance from his/her deceased parent. When the child is adopted, some jurisdictions treat the adoption as disconnecting the legal relationship with the biological parent, and some jurisdictions don’t. We call the former as a full adoption and the latter as a simple adoption.
As you can understand from the general idea of inheritance, an adopted child can inherit from biological parents in Korea only when the adoption is regarded as (more…)
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
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…)
Recently our office has represented US clients whose German father had passed away in South Korea without any will. At the time of passing, the deceased was domiciled in Korea and remarried to a Korean wife. The Korean wife contacted the US family out of blue to discuss how to distribute the estate in Korea. The US clients were the children from the deceased’s previous marriage in the US. They contacted our office for the legal advice and representation.
One of the issues was which country’s inheritance law shall be applicable, i.e. the Korean inheritance law or the German inheritance law. This was because the deceased had a foreign nationality, while his estate and residence at the time of passing were all in Korea. Practically, when the Korean law is applied, the US children shall be entitled to the larger shares than those granted under the German law.
In Korea, Article 49 of the Korean Act on Private International Law(“APIL”) is the starting point to determine which country’s law shall be the governing law in case of an international inheritance case. It provides that (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.
When a foreign incorporated company does a business in Korea, it is very fundamental to determine whether the company is a domestic or a foreign corporation for Korean tax purposes. A major difference in tax liability is that, in principle, a foreign corporation is liable for taxes only on the incomes generated in Korea rather than a worldwide income.
In this regard, the Corporate Tax Ac of Korea(“CTA”) defines a “domestic corporation” as a corporation with its headquarter, main office, or actual business management place located in Korea, and a “foreign corporation” as an organization which has its head office or principal place of business in a foreign country. What makes distinguishing domestic corporation for a foreign corporation under CTA difficult and challenging is the meaning and application of the term of “actual business management place” set forth in CTA. For example, in a case decided by the Supreme Court of South Korea in 2016, a Singapore incorporated company had challenged the Korean tax authority’s decision that its actual business management place was in Korea.
The Singapore company had a wide variety of international business portfolio and among them was a trading foreign issued corporate bonds including a Korean corporate bond. The Korean tax authority decided that the company’s actual business management had taken place in Korea after finding the facts that the company had a liaison office in Korea, one of the directors was residing in Korea and financial documents relating to the Korean business was stored and managed in Korea. And this (more…)
(Question) I have a question regarding my current situation with my ex-husband. He is a Korean national and working there in South Korea. I lived there until 2014 when I came back to Washington and filed a divorce complaint here. Since then he has refused to speak with me. This year my US lawyer duly served him with the paper but he just kept ignoring it. At any rate, I got a divorce decree and child support ruling for my baby this April. Now I am wondering how I can enforce my US ruling in Korea, knowing that he is living a luxurious life and feels that he can just ignore his child and the responsibilities that come with it.
(Answer) I have to say that there is something unclear in this case. If the court proceedings in Washington(WA) court have been duly made, i.e. (i) the WA court had proper jurisdiction and (ii) he was duly served, you can apply for its execution in Korea. Otherwise, you may initiate the whole process de nuvo in Korea. The second threshold seems to have been met here. Thus, the real issue here rather is the first one.
Please note that the jurisdiction must be acknowledged in the view of Korean law, not the WA law. Thus, even though the WA ruling says the WA court has proper jurisdiction, the Korean court will (more…)
It is well known that the Korean labor law provides the employees with generous protections when it comes to the matter of disciplinary measures taken by the employer. In this article, we explain what protection is given to foreign employees in the area of termination and other disciplinary actions.
Employment Is Not “At-Will” in Korea
Unlike many other foreign legal regimes, Labor Standard Act of Korea (LSA) requires the employer having five or more employees to establish a just cause in order to exercise dismissal and any other disciplinary actions. In other words, employment is not “at-will” in Korea. (Note: There is a legal concept of no-fault dismissal based on the managerial hardship under the LSA, which requires very strict requirements to execute. This will be the subject of our upcoming article)
Foreign Employees Can Be Protected By the Korean Labor Law Even If the Labor Contract Says Korean Labor Doesn’t Apply
This rule of labor laws shall equally apply to the employment contract between Korean employers and Foreign employees in Korea, and vice versa.
More importantly, this is the case even when the employee working in Korea agrees in his employment contract that the Korean labor law does not apply. That is because the Private International Act of Korea which provides the general principles for the choice of law enables every Korean and foreign employee working in Korea to enjoy the protections under the mandatory rules of the Korean labor law.
Therefore, it is highly advisable that any foreign employee working in Korea and a multinational which has employees in Korea must understand how the Korean labor law regulates the dismissal and under what situation the dismissal becomes a wrongful termination.
What is the Just Cause for Dismissal in Korea?
The LSA does not provide what the just cause exactly means. It is up to the court’s review and interpretation. In this regard, it is firmly established in the Supreme Court’s precedent that (more…)