Here we continue our discussion of international marriage and divorce, focusing on divorce in time for Black Day.
Only one thing could possibly be better than admitting that your relationship is irreparable, or going through the pleasure of dividing substantial assets with someone who no longer likes you while fighting over some tiny or not-so-tiny living things you made together. That is having all of this take place, at moderate to great expense, in a courtroom of unsympathetic onlookers.
It’s the most joyous of times.
The best way to minimize this pain is to agree on how to do it in advance. We mentioned prenups in Part 1. Agree on who gets what while you’re friends and it’s much easier to divvy up when you’re enemies.
That said, most couples don’t go down that route, which is good for lawyers, who then make more money by handling more complex divorces. And in fact even a prenup cannot control everything ― certain legal rights and obligations cannot be changed.
The idea of a prenup is fairly new to Korean law and so, unlike other jurisdictions, there have not been a lot of court cases to test and clarify the boundaries of what is legal and what is not. Hence, it’s a bit more complicated than downloading a form and filling in the blanks.
But with or without a prenup it is possible to have a divorce by agreement. In fact, under Korean law there are only a few circumstances in which one spouse can force a divorce by the court. Assuming both spouses want a divorce, they will need two witnesses (as with marriage) and will have to submit the paperwork to the “gu” district office.
The district office may refer the parties to counseling, and if there is a child involved the divorce proceedings cannot begin immediately. Rather, the couple must reconfirm their intention to divorce three months later and must agree on certain particulars regarding child custody, visitation and support.
If they cannot agree on the issues regarding a child, they can still obtain a divorce but will need to go through a court process to determine custody and related issues.
Assuming they reach an understanding, the court will then follow the agreement unless it is not in the best interests of the children or against the law. If so, the court will alter the agreement ― basically deciding what is best for the children in accordance with the law.
Regarding property, the parties can agree on how to divide it, and if they fail to do so, the court will step in. Korea generally follows what could be considered a “community property” approach, in which what is received by either spouse during the marriage is divided between the two equally.
However, there are several nuances here: If the marriage was very short, the court may say that the community was not fully established and return the property to the individual who earned, bought or otherwise obtained it. Debt during marriage could potentially be treated as the debt of one spouse (if it was taken out for the benefit of the spouse or a third party) or of the community.
Unlike California, where there have been several cases that give very clear guidance on these issues, Korean law on division of property is still quite “green” ― the boundaries are not yet clear and your lawyer has substantial room to argue before the court.
We mentioned “a few circumstances” in which one party can request a divorce from the court without the consent of the other spouse. They are: adultery (try not to laugh as you walk past the room salons), extreme mistreatment by or of a spouse or their lineal ascendants (note the children aren’t so important here), or if a spouse’s status as living or dead has been unknown for three years. In these cases, offended spouse may file for a judicial divorce.
A catch-all category of “any other serious cause making it difficult to continue the marriage” also exists, but has been interpreted fairly strictly. Fairly extreme hardship will need to be shown. Refusal of sex for seven years has been held to be sufficient, but refusing to follow a certain religion’s practices and mental illness (in which the spouse seemed to be getting better) have not.
While discussing divorce, we should emphasize that Korea generally follows a fault divorce system. If one spouse violated the law he or she cannot sue for divorce from the other. So be good. This might make arranging for someone sexy to visit your to-be-ex sound like it would be a good option if they refuse to cooperate, but we do not recommend that. It’s illegal.
In the next part, we will conclude by explaining how international enforcement of divorce and custody decrees works, how much you might expect to pay an attorney and why that might be a good idea.
By Yuna Lee and Darren Bean
Yuna Lee is a Korean attorney at Seowoo & Minyul Law Firm in Seoul. You can read her blog at askakoreanlawyer.blogspot.com
or if there is a legal issue you would like to be addressed, please email email@example.com. ― Ed.
[Disclaimer: This column is not intended as legal advice. No action should be taken or avoided based on this column, no attorney-client relationship is formed by reading this column or contacting the authors, and the authors expressly disclaim any liability for the content of this column. Those with legal problems in Korea should seek advice from an attorney.]