Tuesday, April 06, 2021

DIVORCE LAW IN KOREA

 

Grounds For Divorce in Korea

A divorce may be obtained in Korea based on the mutual consent of the spouses. Art. 834, Korean Civil Act. Both spouses need to agree and appear in court in Korea.


Alternatively, the grounds for a judicial divorce in Korea (Art. 840) 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 Act provides that, unless there is an agreement concerning the division of property (but see below on this), 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(2).

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 Act 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 Act, Art. 839-2(2).

Article 830 defines "particular property" (sometimes translated as “peculiar” 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 of 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 Act.

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 might 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. However, this issue is extremely uncertain (see below).

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

The Korean Civil Code expressly authorizes “marital agreements” concerning the division of property between marrying spouses, but these are not necessarily equivalent to prenuptial agreements.  agreements.

Article 829 of the Civil Act provides that, “(1) If husband and wife have not, prior to the formation of marriage, entered into a contract which provides otherwise with respect to their property, their property relation shall be governed by the provision of each Article of this Sub-Section.”

The meaning of this provision is uncertain. There are two opinions on this issue in Korea:

The first opinion is that marital agreements should be recognized upon a divorce under the principle of freedom of contract. This view is supported by a decision of the Supreme Court of Korea issued in 2000, in which the Court held that, “The consultation on the division of property shall refer to the consultation that is held between the parties who have already completed a divorce or the parties who have not yet been divorced with regard to the division of property acquired by the cooperation of both parties during the marriage. In cases where a party who has not yet been divorced makes a consultation on the division of property on the premise that the divorce shall be held, if the party subsequently divorced as determined, the consultation on the division of property shall take effect. (Supreme Court, 24 October 2000, 99 Da33458).

The second opinion, which is totally contradictory, is that a marital agreement should not include provisions concerning the division of assets upon a divorce and that any such provisions would be invalid. This is because a marital property contract is intended to govern the spouses’ relationship during their marriage only and that an agreement that deprives a party of the protection provided by the laws governing financial rights upon a divorce would violate Korean public policy.

Korean Recognition of Foreign Divorce Decrees

Article 217 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)      A final and conclusive judgment rendered by a foreign court or a judgment acknowledged to have the same force (hereinafter referred to as "final judgment, etc.") shall be recognized, if all of the following requirements are met:

  1. That the international jurisdiction of such foreign court is recognized under the principle of international jurisdiction pursuant to the statutes or treaties of the Republic of Korea;
  2. That a defeated defendant is served, by a lawful method, a written complaint or document corresponding thereto, and notification of date or written order allowing him or her sufficient time to defend (excluding cases of service by public notice or similar), or that he or she responds to the lawsuit even without having been served such documents;
  3. That the approval of such final judgment, etc. does not undermine sound morals or other social order of the Republic of Korea in light of the contents of such final judgment, etc. and judicial procedures;
  4. That mutual guarantee exists, or the requirements for recognition of final judgment, etc. in the Republic of Korea and the foreign country to which the foreign country court belongs are not far off balance and have no actual difference between each other in important points.

The effect 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 217 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 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.

(e) Reciprocity

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.

Friday, April 02, 2021

CHINA: FAMILY LAW UPDATE: March 2021

Jeremy D. Morley

China has substantially amended its Law on the Protection of Minors. The new law, passed by the 13th National Peoples Congress in October 2020, will take effect on June 1, 2021.

The amended law contains a list of virtuous principles concerning the duties of parents and guardians, the requirement to protect children, and the role of state organs, residents’ committees, villagers’ committees, public security units, civil affairs offices and other “relevant departments” in supervising citizens’ behavior concerning children.

The newly-specified duties of parents include educating and guiding minors to abide by the law, to be diligent and thrifty, and to “develop good ideological, moral and behavioral habits.” The new requirements include provisions whereby “the state establishes a unified electronic identity authentication system for minors in online games;” as well as an obligation “to install minor network protection software on smart terminal products … for minors, etc.”

A measure that could have a significant impact on the parenting of children in China after parental separation is a provision that, “it is not allowed to compete for custody rights by snatching or hiding underage children.” Until now, a parent in China has generally been free to take a child away from the other parent, often to a distant location. Indeed, in my area of focus, which is that of international families, it is extremely common that, when a Chinese and non-Chinese couple living in China separate, the Chinese parent will exercise self-help by simply removing the child from the other parent, often by taking the child to live with a grandparent or by moving to an undisclosed location. Until now, this method has been all-too-successful. It remains to be seen whether this practice will now change as a result of the new law, or, even more unlikely, whether the new law will have any impact when a Chinese parent abducts a child to China from another country.

A further significant development, effective February 18, 2021, is that courts are now required to interpret the law in compliance with the “Guiding Opinions on Deeply Promoting the Integration of Socialist Core Values into the Analysis and Reasoning of Adjudicative Instruments,” issued by the Supreme People’s Court of China. While this rule applies in all cases, it is especially required in cases “of public concern,” including matters as to which an important principle should be stated for the purpose of the education of the public.

The “Socialist Core Values” that must guide all court decisions comprise twelve qualities that should define the relationship between citizens and the Chinese state. These values are: prosperity, democracy, civility, harmony, freedom, equality, justice, the rule of law, patriotism, dedication, integrity and friendship. Their specific application must comport with the guidance of the People’s Court as it, in turn, interprets the guidance it receives from the People’s Congress. In this context, it is critical to note that the Chinese judiciary makes no claim to judicial independence. It acknowledges that it is strictly subordinate to the Chinese Communist Party.

 

 

Monday, March 29, 2021

CHILD RELOCATION TO BRAZIL, MIRROR ORDERS AND HOMOLOGIZED ORDERS

The mere fact that a foreign child custody order is homologized in Brazil does not guarantee that the order will remain in effect and unchanged over time.

Brazilian courts will have jurisdiction to hear an application to modify any such order once the child has relocated to and is resident in Brazil.

Under Brazilian law, child custody orders are not final orders and are always subject to modification whenever a court finds that there has been a change in family circumstances.

See https://www.international-divorce.com/child-relocation-to-brazil-mirror-orders-and-homologized-orders

Tuesday, March 23, 2021

Korean Child Custody: An Important Ruling

 Jeremy D. Morley

The Supreme Court of Korea issued an extremely important ruling on child custody in May 2020. Supreme Court Decision 2018Meu15534 Decided May 14, 2020 [Divorce].

The issue concerned whether a court had the power to order joint custody in a case in which the parents were in fundamental disagreement.

The governing Korean statutes – Articles 837 and 909(4) and (5) of the Civil Act; Article 2 of the Family Litigation Act, and Article 2 of the Family Litigation Act provide broad authority for the courts in Korea to issue orders concerning child custody.

The Supreme Court restated the fundamental principle that the determination of the custody upon a divorce must be made in the best interest of the minor child’s growth and welfare. In this regard, courts should take into account the gender and age of the child, the presence of the parents’ love for and intent to rear the child, the financial ability of each parent to provide care for the child, the details of the manner of child-rearing adopted by each spouse, the reasonability and appropriateness thereof, the likelihood that their child-rearing styles can strike a balance, the level of intimacy between the child and each parent, and the wishes of the minor child.

The specific issue before the Court was whether the lower court had properly ordered joint custody of the child when the parents were in fundamental disagreement concerning matters relating to the child’s welfare.

The Court ruled that an award of joint legal custody to both divorcing parents was not precluded by the governing legislation, since the statutes did not stipulate that a court ought to designate only one of the parents as a legal custodian or a physical custodian.

However, it ruled that, before ordering joint custody, a court must exercise caution by taking account of the fact that a divorce is necessarily attributable to a serious conflict, such as torts, desertion, unfair treatment or other reasons that have made the continuation of the marriage impossible.

The Court stated that sharing of custody rights can create problems in that the child often has to suffer the inconvenience of alternating between the separate residences of the parents, which can be especially problematic if the child is in school. The child also risks experiencing confusion in value judgments or an unstable living situation.

Furthermore, if the parents are in conflict over parenting styles, the negative impact on the child outweighs the positive impact to be achieved by shared custody.

Therefore, in the case of judicial divorce, the appointment of both parents as joint custodians of a child should only be allowed only in cases where the conditions for shared custody are fulfilled. Thus, the courts must comprehensively consider (i) whether both parents are prepared to share joint custody of the child; (ii) whether there is a substantial difference in a set of values they have in terms of child rearing; (iii) whether both parents live nearby and the environments where the child will be reared are similar so that economic and time loss the child will incur is kept minimum and that the child will have no difficulty adapting to the environment; and (iv) whether the child has rational and emotional responsiveness to adjust to shared custody.

In the specific case before the Court, the lower court had designated the parents as joint custodial parents and joint residential parents of the child, with one parent having the child each week from Sunday at 17:00 to Friday at 17:00, and the other parent having the child each week from Friday at 17:00 to Sunday at 17:00 as a shared parenting method.

That determination had been made despite the fact that each parent had demanded sole custody and there had apparently not been an adequate analysis of the critical issues of “mitigating time and money loss and psychological instability potentially suffered by the child, who will have to alternate between the residences of the Plaintiff and the Defendant, follow the parenting decisions of each parent, and adjust to hugely disparate physical environments.”

For these reasons, the Supreme Court overturned the decision of the lower court and remanded the case for a new determination to be made consistent with the Supreme Court’s opinions.

Thursday, February 18, 2021