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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:
- An
unchaste act (adultery);
- Malicious
desertion;
- Extreme
maltreatment by the other spouse or by his/her lineal ascendants;
- Extreme
maltreatment of one spouse's lineal ascendant by the other spouse;
- When
the death or life of the spouse has been unknown for three years; or
- 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:
- 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;
- 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;
- 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;
- 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.
