Wednesday, July 27, 2016
Jeremy D. Morley
Nature and Purpose of the Registry
The Korean Family Registry is governed by Korea’s “Act on the Registration etc. of Family Relationships.” The purpose of the Act is defined in Article 1 as “to prescribe matters concerning the registration of establishment and changes in family relations such as the birth, marriage, death, etc. of people and matters concerning certification thereof.”
Korean clans have maintained family registers for many generations. In 1905 Japan annexed Korea and in 1909 introduced a “modern” national family registry system modeled closely on the Japanese “koseki” system of family registration. The rules were clarified by means of a Family Register Ordinance in 1922.
The purpose of the Korean registry was to provide for national control of the identity of citizens of the country, to permit clear identification of each citizen as a part of a specific family unit under the control of a specified male family head who had clear authority over and responsibility for all listed family members, and to facilitate government administration specifically including the collection of taxes. Under that system (the “hoju” system, when a daughter married, she was removed from her father's "hojeok” (family register) and transferred to her husband's.
In 2005 the system was modified to the extent of abolishing the authority of the male family head over the individual family members.
The current law governing the registration system was enacted in 2007 and has since been amended on several occasions.
Korean Nationality of Child
The child of a Korean national is entitled to Korean nationality, even if the other parent is not a Korean national. If the application for such nationality is not made upon the child’s birth, the Korean parent may apply for nationality for a minor child at any time thereafter. Article 2 of the Korean Nationality Act.
Method of Registration
A child outside Korea may be registered on the Korean Family Registry by the submission by a parent of Korean nationality of the original birth certificate of the child to a Korean Consulate, as well as the passports of the parents. If a child is registered on the Korean Family Registry the child is eligible for a Korean passport.
Passport Issuance Procedure
If a Korean national parent applies at a Korean Consulate for the issuance of a Korean passport for a child who is identified on the Korean Family Registry as his or her child, the Korean Consulate will issue a passport for the child based solely on information supplied by the Korean parent.
If only one parent applies for a passport he or she must sign a Legal Representative Agreement representing that he or she has the consent of the other parent. A warning is set forth at the foot of the Agreement warning that there are civil and criminal penalties for misrepresenting this crucial fact. However, in practice the Korean authorities do not check the veracity of the representation or require that any supporting evidence that the consent of the other parent was actually obtained.
The Korean authorities have no obligation to respect foreign custody orders. As a sovereign country Korea follows its own laws and procedures.
An Illustration of the Problem:
A Korean mother lives in Colorado, USA with a daughter who was born in the United States. The child is listed in the Korean Family Registry. The mother is divorced from the child’s American citizen father. By Colorado court order they share the custody of their child. The mother wants to obtain a Korean passport for the child without the knowledge or consent of the father and take the child covertly to Korea. If the mother visits a Korean consulate with her own Korean passport she will be asked to sign a Korean “Legal Representative Agreement” on behalf of herself and the father, representing that the other parent has consented. If she does so, despite the fact that her representation concerning the father’s supposed consent is false, she will receive a Korean passport for the child shortly thereafter and will be able to take the child out of the United States without the knowledge of the father.
Tuesday, July 12, 2016
Jeremy D. Morley
The U.S. State Department has just issued its 2016 Annual Report on International Parental Child Abduction under the Sean and David Goldman International Child Abduction Prevention and Return Act.
The Report cites 21 countries that either demonstrated a pattern of noncompliance as defined in the Act or otherwise failed to comply with any of their obligations under the Convention.
The Report identifies 11 countries that, although they are parties to the Hague Convention and are partners with the United States with respect to the Convention, have “demonstrated a pattern of noncompliance” with the Convention in 2015. These countries are Argentina, The Bahamas, Brazil, Colombia, Costa Rica, Dominican Republic, Ecuador, Guatemala, Honduras, Peru, and Romania.
The Report also lists two countries as countries that failed to comply with one or more of their obligations under the Convention with respect to the resolution of abduction or access cases. These countries are Austria and Japan.
Finally, the Report lists 8 countries that are not signatories to the Hague Convention but nevertheless “demonstrated a pattern of noncompliance” in 2015. These countries are Egypt, India, Jordan, Lebanon, Nicaragua, Oman, Pakistan, and Tunisia.
It is extremely important to note that the failure of the State Department to identify a country as noncompliant with the Convention does not mean that the country is indeed compliant or that the legal or administrative authorities in such a country will return abducted children promptly to the United States.Follow this link to view the full report:
Tuesday, June 14, 2016
The below article was recently published in the May 2016 issue of AJ Famille, a monthly publication featuring articles on all aspects of Family Law, with a French focus:
The Hague Abduction Convention in the United States
Jeremy D. Morley*
The Hague Convention on the Civil Aspects of International Child Abduction is a remarkably successful international treaty that has had a substantial impact globally in deterring international child abduction.
The purpose of this article is to inform lawyers in France of some of the distinct ways in which the Convention operates in the United States.
Limited Role of Central Authority
The State Department's Office of Children's Issues is the U.S. Central Authority for Hague cases. Unlike many other countries, the U.S. Central Authority does not litigate Hague cases, and is not involved in any significant way in Hague litigation. A petitioning parent must retain private counsel to initiate a Hague case in court in the U.S.
Submitting an application to the Office does not initiate judicial proceedings, does not stop the clock for purposes of the “one year and settled” exception to the Convention, and does not require the taking parent to take or not to take any action. The Office does not appoint attorneys for left-behind parents and does not file return petitions with the courts. The responsibility for starting a Hague case in an appropriate court rests exclusively with the left-behind parent.
One area in which the Central Authority has an important role is that it is required by Congress to prepare regular reports as to the compliance by other Hague countries with the provisions of the Convention. These reports are useful evidence in custody cases concerning whether or not a parent should be allowed to take a child for a visit to a foreign country.
The United States has not accepted as Hague Convention treaty partners all countries that have acceded to the Convention. The status of such acceptances must be checked whenever a Hague case is contemplated.
In many countries Hague cases are channeled to a limited number of judges who have special training and experience in handling Hague cases. While the U.S. State Department has lobbied other countries to provide such training and judicial concentration in Hague cases, in the U.S. Hague cases can be brought before either federal or state judges wherever the child is located. Since there are several thousand counties and many federal judicial districts, a Hague case can be brought before any one of thousands of courts in the U.S. Most such judges have never handled a Hague case.”
Family Court judges and U.S. federal judges have completely different backgrounds. This means that the choice of the state or federal system can have a major impact on the outcome of the case. Litigants and counsel might prefer a family court judge who has experience in child custody cases or a federal judge who does not have any such experience.
In practice, the vast majority of Hague cases are brought in federal court. Petitioners often prefer to bring the case in a court that is not accustomed to applying “best interests” analyses in conventional child custody cases. Also, swift action might be more likely in a federal court, whose dockets are shorter and whose enforcement procedures are clear and forceful.
If the case is started in a state court the respondent has the absolute right to remove it to the federal court.
Application and Petition
The standard Hague application that is filed with the Central Authority need not contain much detail. The usual procedure is that the petitioner’s attorneys will then file a far more detailed petition in the appropriate court, which may be supported by documentary evidence and even by sworn affidavits. Often an ex parte motion for a protective order is filed at the same time, seeking an immediate court order barring the respondent from leaving the jurisdiction with the child and requiring that passports be deposited in court. The respondent then has a limited period of time within which to file its responsive pleading, and must appear in court at a certain time (often within just a few days) typically with the child.
At the first court appearance, petitioner’s attorney will normally explain the petitioner’s theory of the case and ask the court to schedule a final hearing on the matter on as expeditious a basis as possible. The respondent’s attorney will normally advise the court at this time of the basis of the defense.
Occasionally a court might decide the case summarily based on the papers submitted by the parties but usually the court will schedule a hearing with live witnesses. The hearing date should be well within the six week schedule called for by the treaty.
The court will also generally hear and resolve at this time any pre-hearing issues that either party might raise. Such issues may include the following: Whether pre-hearing discovery should be permitted and, if so, upon what terms; whether interim relief should be ordered, or continued if previously ordered; whether a guardian or lawyer should be appointed for the child; whether telephone or video testimony should be permitted; and whether witness affidavits should be accepted in evidence.
Pre-trial discovery is often permitted provided it does not delay the trial. The discovery can include pre-hearing depositions (out-of-court oral testimony of a witness that is reduced to writing for later use in court), written interrogatories, and demands for the production of documents and other evidence.
Guardian / Lawyers for Child
If a respondent asserts an exception based either upon grave risk of harm to the child or on the objections of a mature child, the court mighty appoint an independent expert to help determine the facts or an independent lawyer to represent the child. Courts have sometimes appointed an attorney to act in the dual role of the “guardian ad litem” (a person the court appoints to investigate what solutions would be in the “best interests of a child”) and as the child’s attorney.
The testimony of the child who is the subject of a Hague petition may be heard in a Hague case when appropriate. The child’s opinions are frequently permitted on the issue of a mature child’s objection. A child’s testimony has also been permitted as to facts concerning whether the child was habitually resident in a specific location and as to the grave risk exception. In such cases the courts make it quite clear that the weight they will give to such testimony may be less than that given to the testimony of other witnesses, depending on the age and maturity of the child and the extent to which the child’s testimony is independent. A child’s testimony is often taken in an informal manner.
The legal fees in a U.S. Hague case can be very high. U.S. domestic law expands Article 26 of the Convention by providing that any court that orders the return of a child under the Hague Convention “shall order” the respondent to pay “necessary expenses” incurred by or on behalf of the petitioner, “unless the respondent establishes that such order would be clearly inappropriate.” However, there is no provision for a winning respondent to claim legal fees from the petitioner.
It may surprise foreign lawyers to learn that the issue that creates the most confusion and lawyers’ time in American courts is that of habitual residence. Determining the child’s “habitual residence” is a threshold issue in any Hague Convention case. It is often outcome-determinative because, if the court concludes that the country from which the child was removed was not the country of the child’s habitual residence, the Convention will not apply and the petition must be dismissed.
Courts in the U.S. have scrutinized the phrase extensively and there has been substantial diversity in the way that it has been interpreted in different circuits and by many state courts.
The courts have developed three primary but divergent approaches to determine the habitual residence.
The first approach – followed by a majority of courts -- focuses primarily on parental intention, with a subsidiary look at acclimatization. The parents' “last shared intent” regarding their child's habitual residence is presumed to be controlling, although the presumption can be rebutted in exceptional cases if the child has sufficiently acclimatized to its new surroundings as to render a return order unfair or seriously damaging.
Courts taking this approach will decide that a child has acquired a new habitual residence only if it is established that the parents had a shared and settled purpose to do so. Many courts also require proof of an intention to abandon the former habitual residence. The inquiry focuses on the state of mind of each of the parents, and whether their intent was shared. This may be revealed by considering, for example, whether or not they intended the move to be permanent or temporary, how long they intended to stay, whether they had plans to return to a previous residence, whether the shared intention was unconditional and whether an express or implied condition was satisfied. It is possible, using this approach, to find that a child remained habitually resident in a prior country of residence despite having resided for several years in a new country, even attending school and assimilating into the new community.
The second approach is the “child-centered approach” whereby the courts look exclusively at the child's objective circumstances and past experiences. Relevant inquiries include whether the child is attending school, the child’s participation in other cultural, and the child’s overall level of acclimatization and integration into the community. The inquiry does not consider parental intent, which is deemed to be entirely irrelevant.
The third approach requires a mixed inquiry into both the child’s circumstances and the shared intentions of the child’s parents. How much weight should be given to each factor is unclear. Sometimes evidence of shared parental intent to abandon an old habitual residence and acquire a new one will trump any evidence of acclimatization from the child’s perspective. In other cases, sufficient evidence of acclimatization will defeat any evidence of shared intent.
Unfortunately the U.S. Supreme Court has never resolved the conflicting interpretations. As a result, the treaty can be interpreted quite differently depending, for example, on whether the case is brought on one side or the other of the Hudson River between New York and New Jersey, with New York looking primarily at the last shared parental intention and New Jersey looking far more at the actual “conditions on the ground.” The treaty is supposed to have one autonomous meaning on a global level, but that has rule not been respected in the U.S.
Since the majority interpretation focuses on parental intention, it is essential whenever habitual residence is disputed to present as much evidence as possible as to all the factors that might indicate such intention.
Grave Risk of Harm
The U.S. follows the general principle that the grave risk of harm exception in Article 13(b) of the Convention must be interpreted narrowly. The burden of proof of most of the Hague exceptions is “preponderance of the evidence” but for grave risk it is “clear and convincing evidence,” a much higher standard.
Expert testimony is often used by both sides, especially testimony from doctors, psychologists, social workers and even lawyers who can testify as to the resources available in the habitual residence. Such testimony may be decisive in proving or disproving grave risk of harm.
Many courts require a respondent to establish prior harm to a child but also to prove that the authorities in the habitual residence will not provide adequate protection if the child is returned. Some courts have recently deviated from that requirement and the issue is unsettled.
A difficult situation often arises when there is evidence of domestic violence against a spouse, but less severe abuse or none at all directed at the child. Traditionally, a respondent must show a strong link between the spousal abuse and harm to the child, but some courts have adopted a broader approach. The cases vary dramatically depending on the facts of the case and the nature and quality of the evidence.
Some U.S. courts have attached conditions, or undertakings, to a return order in an effort to mitigate the risks that might result from the return. The U.S. Department of State has urged that undertakings should be used sparingly and be narrowly tailored to advance the Convention’s goal of prompt return. In some cases the courts have stated that undertakings provide a false sense of security, since they may well be totally unenforceable.
An Alternative Procedure
There is an alternative procedure in the U.S. to obtain the return of an abducted child.
Every American state) has adopted the Uniform Child Custody Jurisdiction & Enforcement Act (the “UCCJEA”), except Massachusetts which has a similar law.
The UCCJEA generally requires U.S. courts to register and enforce custody determinations issued by a foreign court if that court had jurisdiction under the jurisdictional principles contained in the UCCJEA. If the child had lived in the foreign country for the six months preceding the commencement of the foreign custody case, and if that case was the first custody case concerning the child, the foreign country will be the “home state” of the child within the meaning of the UCCJEA, and an American court must normally consider that the foreign court had custody jurisdiction.
It may be preferable for a left-behind parent whose child has been taken to the U.S. to proceed under the UCCJEA instead of the Hague Convention. There are several reasons for this:
· The primary venue for the litigation is the jurisdiction from which the child was taken. This will usually be far more convenient and comfortable than a distant and unfamiliar American court.
· It is often far easier to establish that the foreign country is the “home state” for UCCJEA purposes than the habitual residence.
· Once a notice to register the foreign custody order is properly given in a U.S. court, it must be enforced unless the respondent can establish that (1) the issuing court had no jurisdiction; or (2) the foreign child custody determination was vacated, stayed, or modified by a court in the foreign country; or (3) notice or an opportunity to be heard was not given to the other parent.
· The UCCJEA does not permit the respondent to assert any of the exceptions that can be asserted in a Hague case.
· A case can be brought under the UCCJEA to register and enforce a foreign custody order even if the foreign country is not a party to the Hague Convention (unless its child custody laws violate human rights).
· The Hague Convention does not provide an effective mechanism for to enforce access rights. The UCCJEA has no such restriction.
· The Hague Convention applies only in respect of children under the age of 16.
· Hague cases generally raise “interesting” (i.e., expensive) issues. UCCJEA enforcement cases usually (but not always) do not. Therefore UCCJEA cases are generally substantially cheaper.
On the other hand, it could be better in some cases to bring suit under the Hague Convention, instead of under the UCCJEA, for a variety of reasons:
· The courts in the child’s habitual residence might not exercise custody jurisdiction if the child is no longer located there. From a U.S. perspective the courts of that country might have jurisdiction but if those courts do not have jurisdiction under their own jurisdictional rules and if there was no custody order in place prior to the child's removal, there will be no foreign custody order to register and enforce in the United States.
· If the foreign country was not the home state for purposes of the UCCJEA, because the child lived there for less than six months (unless he or she was a baby less than six months old), a custody order issued by a court in that country will generally not be enforceable under the UCCJEA.
· If proper notice or a proper opportunity to be heard was not provided by the foreign court, this will be fatal to an effort to register and enforce the order in the U.S.
· If the courts in the child’s habitual residence act slowly it may well be far better to bring a Hague case forthwith in the place where the child is currently located.
· If the courts of the habitual residence will not handle the custody case’ unless and until the child is returned there, it would be possible for the left-behind parent to wait until the U.S. court has custody jurisdiction, usually after six months, and then to sue for custody in the U.S. state where the child is located. In such a situation, however, a Hague case would invariably be a far wiser course, since it would be much quicker and it would not open the door to a full-blown best interests analysis.
Hague cases are handled differently in the U.S. than in other countries. The Convention generally works well but it requires strategic implementation and expeditious implementation. In some cases it is better to proceed under the UCCJEA.
*Jeremy D. Morley is a New York lawyer who handles Hague Convention throughout the United States. He is the author of the American Bar Association book, The Hague Abduction Convention: Practical Issues and Procedures for Family Lawyers. He may be reached at email@example.com
Wednesday, June 08, 2016
by Jeremy D. Morley
1. Colombia’s courts do not normally recognize U.S. custody orders. The U.S. State Department has declared that, “While Colombian courts can recognize or enforce U.S. custody orders, they generally refuse to do so. In a Colombian court, Colombian law takes precedence over U.S. law. A Colombian court order granting custody to one parent will prevail over an order issued by a U.S. court.” Nor is there is any extradition from Colombia for international parental child custody.
2. Colombia is noncompliant with the Hague Abduction Convention. Its courts treat Hague cases as if they are custody cases, which is a serious and fundamental violation of the terms of the treaty. Its courts act slowly and inefficiently, conducting lengthy home studies during which time the abducted children become settled in the country, thereby opening the door to an ultimate finding that the children should not be returned to the United States. Its appeal procedures delay matters further. Colombian courts open their doors in Hague cases to the entire custody issue(s) rather than limiting their inquiries to the strict provisions of the Convention. Not only is this practice in direct violation of the terms of the treaty but it also causes enormous expense, great delays and is most unfair to the left-behind parent in the United States.
3. These opinions are based on my own experiences with child abduction cases in Colombia over the past several years. My opinions are supported further by the official opinions of the U.S. State Department, which in my opinion are highly authoritative and reliable, albeit most conservative and diplomatic, and are relied on by courts throughout the United States and in other countries and by international family lawyers throughout the world.
4. Colombia’s violations of the Hague Convention have caused the United States Government to label Colombia repeatedly as noncompliant and, most recently, to make a formal diplomatic protest against Colombia.
5. In one report, the U.S. Government complained that, “Misunderstanding of the nature and purpose of the Convention in Colombia has led to faulty decisions in Colombian courts. Representatives from the Colombian Central Authority have stated that the Convention exists primarily to protect a child’s best interests, rather than to permit return of a child for a custody determination (and best interests analysis) in the courts of his or her habitual residence." They also have stated their belief that the Convention’s jurisdictional focus is outweighed by Colombian law and the UN Convention on Rights of the Child.
6. The U.S. Government has repeatedly complained of heavy delays in handling abduction cases in Colombia. This is consistent with the findings of the World Bank Group that on the average commercial contract cases take an astonishing 1288 days (3½ years) to be resolved in Colombia.
7. In May 2015 the U.S. State Department made a formal determination, , that Colombia is a country “Demonstrating Patterns of Noncompliance” with the Convention, because the Colombian Central Authority “regularly fails to fulfill its responsibilities pursuant to the Convention” and “The judicial or administrative branch … fails to regularly implement and comply with the provisions of the Convention.”
8. Accordingly, at that time the United States Government through the U.S. Embassy in Bogota, Colombia delivered a formal diplomatic complaint – a “demarche” – to Colombia protesting Colombia’s noncompliance with the terms of the Convention.
9. Based on such factors, the Superior Court of New Jersey ruled in 2014 -- in a case in which I provided expert testimony as to international child abduction and Colombia -- that the child’s Colombian mother should not be allowed to take the parties’ child to Colombia because the risk of her retaining the child in Colombia outweighed the benefit of international travel.
Tuesday, June 07, 2016
Another U.S. case was resolved today based on my expert testimony concerning the risk of permitting child visitation to Japan.
The Japanese Ministry of Foreign Affairs has released some limited information about the number of applications that it has received under the Hague Abduction Convention and the number of cases in which children have been returned. The figures are quite disturbing. It is essential to understand that just because a country has signed up to the Convention does not mean that abducted children will be returned. With Japan, the concerns are substantially enhanced by virtue of the terms of the Implementing Act whereby Japan brought the Convention into domestic Japanese law and limited its scope.
Thursday, May 19, 2016
Jeremy D. Morley
Grounds for Divorce in Korea
A divorce may be obtained in Korea based on the mutual consent of the spouses. Art. 834, Korean Civil Code. Both spouses need to agree and appear in court in Korea.
Alternatively, the grounds for a judicial divorce in Korea are:
1. An unchaste act (adultery);
2. Malicious desertion;
3. Extreme maltreatment by the other spouse or by his/her lineal ascendants;
4. Extreme maltreatment of one spouse's lineal ascendant by the other spouse;
5. When the death or life of the spouse has been unknown for three years; or
6. Any other serious reason for which it is difficult to continue the marriage.
There is no provision for a no-fault divorce (except for a divorce by agreement between the parties).
The Korean judicial divorce process is a fault-based contest between a wrongdoer and the wronged. The courts reason that a guiltless spouse should not be forced into an unwanted divorce. Korean legal scholars supporting the fault-based system generally cite the following reasons: Granting a divorce to the party at fault goes against Confucian morality (doei), and may encourage the husband to arbitrarily abandon his wife, as was the practice in the past. Moreover, by forcing a couple to stay in marriage, it is believed that a wife will be able to continue to use the common property and receive support.
The standards that govern divorce and child custody in Korea are extremely subjective and the judges are vested with great discretion. The standards are very flexible. In the Korean system, the judge is intended to be a parent to the public, who is benevolent, lenient, and wise.
Financial Issues in Korean Divorce Law
The Korean Civil Code provides that, unless there is an agreement concerning the division of property, the Family Court shall “determine the amount and method of division, considering the amount of property acquired by cooperation of both parties and other circumstances.” Korea Civil Code, Art. 839-2(1).
The courts consider such factors as the parties' ages, occupations, the reason why they came to a divorce, and their contribution to the property in deciding the proportion. The property that can be divided is property that was acquired during marriage through the cooperation of both spouses. Property that was acquired solely through the individual effort of one spouse even during the marriage is treated as the individual property of that party. Therefore, the court has a very broad discretion to determine what property is divisible, based on the extent to which the parties “cooperated” in the creation of any particular asset.
Of critical importance is the language in the Code to the effect that the Family Court should determine the amount and method of division “considering the amount of property acquired by cooperation of both parties and other circumstances.” Korea Civil Code, Art. 839-2(2).
Article 830 defines “particular property” as property that a spouse owned before marriage or property acquired during marriage but is under the name of only one spouse. The meaning of “particular property” in terms of divisible property under Article 839-2 is different from the meaning under Article 830. Property accumulated during marriage that is under only one spouse's name is nonetheless divisible if it resulted from cooperation of the married couple.
The Supreme Court of Korea has affirmed lower court rulings that have insisted that the household labor of one spouse must be taken into account when applying this rule. Nonetheless, the Korean courts have historically undervalued the contribution of spouses who provide housework by giving them less property in the division of acquired marital property. Retirement allowances are divisible only if at the time of the divorce they have been received or the date of the retirement and the amount has been declared.
In addition, there is no spousal maintenance in Korea and the courts have the power to adjust the property division in favor of the economically disadvantaged party. For this reason, in some cases a nonworking spouse has received more than half of the parties' assets. Indeed, Korean counsel report that in practice the typical rule is that upon a divorce the wife is invariably entitled to receive one-half of all the parties' assets, both pre-marital and post-marital.
Choice of Law in Korean Divorce Law
Korean courts apply the law of the parties' common nationality to their divorce and to matters arising from the divorce. If there is no common nationality they will apply the law of a common habitual residence or otherwise the law of the place that is most closely connected to both spouses. Article 840. Korean Civil Code.
However, if one of the spouses is a Korean national whose habitual residence is in Korea the court must apply Korean law. Korea, Private International Act, Art. 39.
If the parties have chosen a foreign law to govern their marital property the choice will be respected if the agreement complies with execution requirements and if the law that is chosen is that of either spouse's nationality or habitual residence (or in the case of real property is the law of the location of the property). Korea, Private International Act, Art. 38.
Issues concerning the legal relations between parents and children are governed by the law of the parents' common nationality or otherwise by the law of the child's habitual residence. Korea, Private International Act, Art. 45.
Prenuptial Agreements in Korea
As we have stated, the Korean Civil Code expressly authorizes premarital agreements concerning the division of property between marrying spouses. The Code provides that, unless there is an agreement concerning the division of property, the Family Court shall “determine the amount and method of division, considering the amount of property acquired by cooperation of both parties and other circumstances.” A prenuptial agreement may not be altered during the marriage except upon the express approval of a court.
However, Korean counsel have reported to us that since upon a divorce the wife is invariably entitled to receive one-half of all of the parties’ assets, a contract between the parties that gave less than one-half of all such assets would be void under Korean law. This is not statutory but it is the rule nonetheless. A contract that gives more than one-half to the wife would be enforceable. A contract that requires the husband to pay a specific amount of alimony to the wife would be enforceable, provided she received at least one-half of the parties’ assets.
Korean Recognition of Foreign Divorce Decrees
Article 203 of the Korean Code of Civil Procedure provides as follows:
A final foreign judgment shall be valid and enforceable only if it satisfies the following conditions:
1. The jurisdiction of the foreign court of judgment is not denied by any law, or treaty;
2. if the losing defendant is Korean, he received service of summons or other orders necessary for the commencement of the action other than by public notice, or he made an appearance without receiving service thereof;
3. the foreign judgment is not contrary to the public policy or good morals of Korea; and
4. reciprocity is secured between Korea and that foreign country.
Two other provisions of the Korean Code of Civil Procedure are also of significance to enforcement:
Article 476 provides:
1. Enforcement based on the judgment of a foreign court may be carried out only when the admissibility thereof is pronounced by way of a judgment of enforcement rendered by the Korean court.
2. In regard to a suit demanding a judgment of enforcement, the District Court of the place where the general forum of a debtor exists shall have jurisdiction, and in case no general forum exists, the court having the jurisdiction over the action against the debtor in conformity with provisions of Article 9 shall have jurisdiction.
Article 477 provides:
1. A judgment of enforcement shall be rendered without inquiring into the merits of the decision.
2. A suit demanding a judgment of enforcement shall be dismissed in the following cases:
(i) When it is not certified that the judgment of a foreign court has become irrevocable;
(ii) When the foreign judgment does not fulfill the conditions prescribed in Article 203.
The effect of the three statutory provisions is to provide several distinct requirements that must be satisfied if a foreign judgment is to be enforced in Korea:
(a) The requirement of finality and conclusiveness
Interim awards are not the subject of enforcement proceedings in Korea. Foreign temporary dispositions are not recognizable because of their nature as provisional remedies.
A foreign judgment will be considered a final judgment only if there exists no possibility of a future appeal. The party seeking to enforce a foreign judgment must prove either that an appeal is not possible or that the time for an appeal has passed. California counsel should advise as to whether or not these conditions have been fulfilled.
An order for pre-judgment attachment and an order for pre-judgment injunction are examples of non-final judgments. Similarly, even if a foreign judgment which is permitted provisional enforcement pending an appeal is enforceable in the concerned jurisdiction, it cannot be a subject of recognition in Korea so long as it is not final.
(b) The issue of the location of the subject-matter
The in personam and in rem concepts are alien to Korean jurisprudence. Generally, a foreign judgment in rem would be recognized and/ or enforced in Korea when the judgment concerns immovable or movable property that was within the jurisdiction of the foreign court at the time of the proceeding.
(c) The jurisdiction of the foreign court
It is clear that a Korean court will not enforce a judgment of a foreign court concerning a dispute that is subject to the exclusive jurisdiction of Korea or a third country. For example, in an action concerning rights in Korean real estate Korean courts have exclusive jurisdiction. This will apply to movables located in Korea.
(d) Public policy
Public policy or good morals in Section 203 are judged by Korean standards. The requirement has a broad meaning, which may range from substantive contents of the foreign judgment to procedural fundamentals. The reasons leading to the conclusion as well as the conclusion of the foreign judgment itself should be examined in deciding whether or not the content of the foreign judgment is contrary to public policy or good morals.
A judgment ordering payment of support money should be recognized at least in cases involving foreigners, even if it based on polygamy, in view of the fact that the violation of the principle of monogamy is merely indirect. Public policy means the fundamental principles or ideology of Koreas national legal order and the general sense of morality prevailing in Korean society. The compatibility of a foreign judgment with public policy should be determined by comparing the personal and public interests that might be promoted by recognizing a foreign judgment with the possibility that the national legal order or social ethics may be infringed thereby.
A foreign judgment, the substance of which is not compatible with fundamental principles of Korean law, cannot be recognized in Korea. In determining compatibility with public policy, the factual basis of a judgment, as well as its text, must be taken into consideration. Thus, even a monetary judgment may be held in violation of Korean public policy if the factual basis of such judgment is so illegal or repugnant that the assistance of the Korean courts in implementing the judgment is deemed unacceptable in light of Korean legal philosophy. For example, a judgment ordering the defendant to deliver contraband goods, or a judgment confirming the legality of a concubine is not recognizable in Korea.
Article 17(1) of the Korean Conflict of Laws Act provides that The matrimonial property system shall be governed by the lex patriae of the husband at the time of the marriage. Article 18 of the Korean Conflict of Laws Act provides that Divorce shall be governed by the lex patriae of the husband at the time of the occurrence of the causal facts: Provided that the court may not adjudicate a divorce if the causal facts do not constitute the chief causes for a divorce under the Acts of the Republic of Korea.
Article 23 of the Korean Conflict of Laws Act provides that the duty to support shall be governed by the lex patriae of the person liable to support.
Article 840 of the Korean Civil Act sets forth the bases for a judicial divorce, which are:
1. act of unchastity,
2. malicious desertion,
3. extreme maltreatment,
4. death or life of the spouse is unknown for three years and
5. any other serious cause for making it difficult to continue the marriage. There is no provision for a no-fault divorce (except for a divorce by agreement between the parties).
The Korean judicial divorce is premised on the fault-based system of a contest between a wrongdoer and the wronged. The courts reason that a guiltless spouse should not be forced into unwanted divorce. Korean legal scholars supporting the fault-based system generally cite the following reasons: Granting divorce to the party at fault goes against the Confucian morality (doei), and it may encourage the husband to arbitrarily abandon his wife, as was the practice in the past. Moreover, by forcing a couple to stay in marriage, it is believed that a wife will be able to continue to use the common property and receive support.
The standards that govern divorce and child custody in Korea are extremely subjective and the judges are vested with great discretion. The standards are very flexible. (Lee, p. 493). In the Korean system, the judge is intended to be a parent to the public, who is benevolent, lenient and wise.
It is not necessary that a Korean judgment has been recognized in practice if it is predictable that a Korean judgment will be recognized in light of statutes and legal theories in the foreign country. The conditions of recognition do not have to be identical in Korea and the foreign country. A substantial similarity in important points of the respective requirements should be considered sufficient. The term reciprocity in Section 203 means that the particular foreign country does not inquire into the merits of a Korean judgment by reason of a treaty or its domestic law, and that such foreign country would recognize the validity of a Korean judgment under a standard similar to or more lenient than that of Article 203. Reciprocity means that as the Korean courts recognize judgments of foreign courts, so should the foreign courts recognize Korean judgments. Reciprocity purports to prevent inequitable treatment of Korean judgments by foreign courts.
Several scholars construe reciprocity to mean that the foreign equivalent of Art. 203 must be either the same or more lenient than the Korean standards for reciprocity. Others argue that the foreign recognition standards not differ in any important respects from the requirements found in Art. 203. Recognition of a foreign divorce judgment becomes impossible, however, if the husbands national law is not applied in a suit in which the divorce defendant is Korean. The only court case to face this issue involved a Nevada ex parte divorce decree granted to a Korean businessman who had previously established a temporary residence in New York. The Supreme Court case 71 Da 1634 on Oct. 22, 1971 refused to recognize the Nevada divorce judgment between two Korean spouses on the ground of reciprocity.
Since the Nevada court granted him a divorce for a reason not available in Korea (noncohabitation), the Supreme Court reasons that giving res judicata effect to the Nevada judgment, and thereby barring the wife’s subsequent suit for divorce for malicious desertion and a monetary settlement, which it was considering, would violate Korean public policy evident in Article 18 of the Law concerning Conflict of Laws. While a foreign divorce judgment may be conclusive as to the question of marital status without application of Article 203, any provisions for payment of support can only be enforced by a suit in exequatur under Article 476. Recourse to exequatur on the foreign judgment will therefore cause Article 203 to become directly applicable, including the reciprocity requirement in Article 203 (4).
In a 1971 case involving the recognition of a divorce decree of a Nevada state court, the Supreme Court of Korea clearly declared its support of the first theory (that is, the theory of same or more generous conditions). However, although the Supreme Court has never expressly admitted that it changed its position on this point, the Supreme Court is generally believed to have changed its position and nowadays to support the second theory since a decision of the Seoul District Court of 1995 which expressly took the second theory was upheld by the Supreme Court. Reciprocity means that as the Korean courts recognize judgments of foreign courts, so should the foreign courts recognize Korean judgments. Reciprocity purports to prevent inequitable treatment of Korean judgments by foreign courts.
The lower Korean courts have held that there was reciprocity between Korea and the State of New York, Germany, Japan, respectively. However, the Supreme Court of Korea denied the existence of reciprocity between Korea and Australia.
(f) Extent of Recognition/ Enforcement
It is generally accepted in Korea that when a foreign judgment deals with more than one claim, recognition may cover only part of the judgment. It was not clear whether the amount for a judgment for one claim may be recognized only partially in terms of amount. An example is to recognize a judgment for punitive damages only to the extent consistent with the public policy of Korea by reducing the amount of the judgment. However, in a recent case the Supreme Court of Korea upheld the decision of the Seoul District Court which has expressly recognized only 50% of the amount of the foreign judgment.
There is also the question of public policy about a foreign judgment (particularly an American court) awarding so-called punitive damages or excessive damages. Some commentators have argued that Korean courts should refuse to recognize such a foreign judgment since it is inconsistent with the international standards for compensation of damages or, alternatively, Korean courts should reduce the amount of damages to a level comparable to international standards. In this connection, it should also be noted that the Conflict of Laws Act of Korea provides that damages for a tort committed abroad may be awarded in Korea only to the extent allowed under the relevant Korean law (Sec. 13 (3) CLA). In light of this provision, it may also be argued that a foreign judgment awarding damages for an amount greater than the one that may be awarded by a Korean court in a similar case should be regarded to be contrary to the public policy of Korea.
The 1995 case involved the recognition and enforcement of a judgment of the court of the State of Minnesota against the Korean defendant ordering payment of $500,000 as damages (including mental anguish, physical injury, consequent medical expenses, loss of earnings, etc) plus reasonable compensation for damages arising out of the assault and rape of the plaintiff, the Eastern Branch of Seoul District Court found that the amount of award was much higher than would be acceptable under Korean law for such damages and thus reduced the amount of compensation that would be enforceable to $250,000, i.e. 50% of the original amount awarded by the Minnesota court, based upon the rationale that recognition and enforcement of the portion in excess of $250,000 would be against the public policy of Korea. The judgment was upheld by the Supreme Court of Korea in 1997. See Judgment of September 9, 1997 in re 96 Da 47517 Case.