3/03/2015

Getting a Divorce in Korea: Hire a Korean Divorce Lawyer?

The following Korean divorce information is provided by the Seoul Global Center.  Non-Koreans are capable of obtaining a divorce in Korea.  The Center is an excellent source in Seoul for no cost advice.

In many divorce cases, no divorce attorney in Korea will be needed.  However, in most cases involving non-Koreans it is advisable to seek assistance, because of the need, often, for, among other things, a detailed marital separation agreement prior to divorce and the inability of the parties to resolve all matters in an amicable manner. In all but the most contentious of divorce actions, the legal fees will not be a great burden. 

The following is a clip of the advice noted by the Seoul Global Center on the Seoul Global Center Blog.  IPG has not edited any of the content.

Please also see the following articles on divorce/separations that may of use to the reader:
Sean Hayes may be contacted at: SeanHayes@ipglegal.com.

Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty. Sean is ranked, for Korea, as one of only two non-Korean lawyers as a Top Attorney by AsiaLaw.



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Korea’s divorce rate nearly quintupled between 1980 and 2004 (from 0.6 to 2.9), whereas average divorce rates have remained relatively low for the 25 OECD countries (1.7 to 2.3 between 1980 and 2007). Overall, average divorce rates have more than doubled for 4 Asian economies between 1980 and 2007 (from 0.9 to 2.0)

Another report released by Korea National Statistical Office the (KNSO), divorce rates are rapidly rising for international couples (meaning one Korean spouse and one foreign spouse) living in South Korea. Based on last year’s figures, divorce statistics show some 11,255 international couples divorced in 2008, representing a 29.8 percent increase from 2007 compared to a 7.5 percent increase for Koreans and their Korean spouses over the same period.

General Validity of Divorce
The general validity of divorce shall be governed by one of the following laws in the given order of priority, provided that in cases where a party to the marriage has his/her habitual residence in Korea, the divorce shall be governed by the 「Civil Act」 of the Republic of Korea (Article 39, Private International Act):

1. The same law of the habitual residence of both spouses
※ ’The habitual residence’ means the actual location where the couple resided for a given period of time.

2. The law of the area that is most closely relevant to the couple.
※ Whether a specific area is most closely relevant to a couple shall be determined by comprehensively considering specific factors such as how long the parties stayed there, what they stayed for, whether their family members reside in the same area, whether their work is in the area, etc.
Divorce by Agreement under Civil Act(Article 834,Civil Act)
Element Requirements
For a married couple to divorce by agreement, the following requirements must be satisfied:
  1. The parties to the marriage should agree to divorce.
  2. The parties should have the will to divorce not only when they write the divorce report but when the court receives the report. (Supreme Court Judgment 93Meu171 dated June 11, 1993)
  3. Since the agreement to divorce requires the parties’ mental capacity, if a party to the marriage is an incompetent, he/she must get consent from his/her parents or guardian. (Article 835 and Article 808.(2) and (3); 「Civil Act」).
Procedural Requirements
  1. Guidance and Reconsideration Period – Any person who intends to divorce by agreement shall first seek the guidance on divorce provided by the Family Court and, if necessary, the Family Court may recommend the parties to take counsel with a professional counselor who has expertise and experiences in counseling. (Article 836-2.(1), 「Civil Act」).
  2. The Family Court confirms the intention to divorce after 3 months has passed since the couple received its guidance on divorce if the parties have any child to take care of, and 1 month if not. (Article 836-2.(2), 「Civil Act」). The parties shall submit a written agreement on who would foster and/or have custody of their children or seek adjudication of the Family Court. (Article 836-2.(4), 「Civil Act」). 
  3. The Family Court may exempt the couple from or shorten the above-indicated period if there is an urgent circumstance to proceed with the divorce procedure such as, for example, when a party is expected to suffer unbearably from domestic violence. (Article 836-2.(3), 「Civil Act」).
  4. Divorce Report – A divorce by agreement shall take effect upon reporting it in accordance with the 「Act on the Registration, etc., of Family Relationship」 after obtaining the confirmation of the Family Court. (Article 836.(1), 「Civil Act」).
  5. Nullity/Revocation of Divorce by Agreement – Even if a divorce report has been filed, a divorce by agreement is null if the parties did not agree to divorce, and any person who declared the intention of divorce by fraud or duress may make a claim to the Family Court for revocation of such divorce. (Article 838, 「Civil Act」).
Judicial Divorce under Civil Act (Article 840, Civil Act)
Causes for Judicial Divorce
- You may file for a divorce with the Family Court in any of the following cases (Article 840, 「Civil Act」):
  1. If your spouse has committed an act of unchastity – An act of unchastity’ is a broad concept that includes a wide range of unfaithful conduct, which may fall short of adultery. (Supreme Court Judgment 89Meu1115 dated July 24, 1990)
  2. If your spouse has maliciously deserted you – Malicious desertion’ refers to the conduct of failing to implement the obligation to live together with, financially support, and aid the other spouse with no justifiable reason.
  3. If you have been extremely maltreated by your spouse or his/her lineal ascendant;
  4. If your lineal ascendant has been extremely maltreated by your spouse;
  5. If whether your spouse is dead or alive is unknown for three or more years; 
  6. If there exists any other serious cause that makes it difficult to continue the marriage – Any other serious cause that makes it difficult to continue the marriage’ refers to a situation where the couple’s communal life, the essence of a marriage that is based on mutual affection and trust, has been irrevocably damaged and therefore forcing the continuation of such marital life exposes a party to the marriage to unbearable sufferings. In judging whether there indeed is such situation, various factors and circumstances should be considered such as whether the parties have the will to continue the marriage, which party is responsible for the failure of the marriage and to what degree, how long they have been married, whether they have children, how old the parties are, and whether the parties can earn their livelihood after a divorce. (Supreme Court Judgment 90Meu1067 dated July 9, 1991). 
Procedure of Judicial Divorce
  1. Conciliation – Since a judicial divorce is subject to family litigation of Category B, anyone who intends to file for a judicial divorce shall first make a request to the Family Court for conciliation proceedings. (Article 50.(1), 「Family Litigation Act」).
  2. If you institute litigation without going through the conciliation process, you will be sent back for conciliation; provided that the same shall not apply when deemed that it is impossible to summon one or both of the concerned parties unless resorting to a service by public notice, or that it is impossible to constitute conciliation even if the said case is referred to conciliation. (Article 50.(2), 「Family Litigation Act」).
  3. Litigation Procedure – If there has been a decision not to have conciliation, conciliation has not been constituted, or a decision amounting to conciliation has been made invalid upon an objection, the litigation is regarded to have been instituted when the conciliation request was made. (Article 49, 「Family Litigation Act」; Article 36, 「Judicial Conciliation of Civil Disputes Act」).
  4. A divorce takes effect upon the divorce judgment (Article 12, 「Family Litigation Act」; Article 205, 「Civil Procedure Act」), and the person who instituted the litigation should report the divorce within 1 month from the time when the final divorce judgment is made, by submitting a certified copy of the litigation document and its confirmation certificate. (Article 78 and 58, 「Act on Registration, etc., of Family Relationship」).
Effects of Judicial Divorce
  1. General Effects – Upon a divorce, a marital relationship is dissolved, all kinds of rights and obligations that presupposed the continuation of the marriage expire, and affinity relations created through the marriage get terminated as well. (Article 775.(1), 「Civil Act」). Both parties may remarry.
  2. Effects on Children – If there are underage children when a divorce is established, the parents shall decide and agree on who will have the custody of the children (Article 836-2.(4), 「Civil Act」), and in addition, determine matters related to fostering of the children such as protection of the children and fostering expenses (Article 837, 「Civil Act」).  The children and the parent who does not take care of such children shall have the visitation right (Article 837-2.(1), 「Civil Act」); provided that the Family Court may limit or forfeit such visitation right on its authority or upon the request of a party if such measure is deemed necessary for the welfare of the children (Article 837-2.(2), 「Civil Act」).  The above-indicated’visitation right’ means that the parent who does not take care of his/her children has the right to meet and talk with such children. Included activities are, for example, exchange of letters, talking on telephone, exchange of gifts, staying with the parent over weekends, etc.
  3. Effects on Property – Upon the establishment of a divorce, a party to a marriage may claim the division of property against the other party within 2 years from such establishment. (Article 839-2, 「Civil Act」).  The party may also claim damage compensation against the negligent party. (Article 843 and 806, 「Civil Act」).
FAQ
Q1: I’m a foreigner presently married to a Korean woman for the last ten years and we have a child with both nationalities (until they come of age to choose one).  What happens in case of divorce? Do I have to leave Korea? Is my visa going to be cancelled? If so, how can I take care of my child (see them regularly) if the mother is in Korea and I can’t stay because of visa problems? Do you know? Can I stay in Korea or not? If not, that is going to be extremely unfair and harsh on everybody.
A1: According to the Immigration office, first you need to clarify your type of visa status to get the appropriate information. The reason is that it can be different procedures what types of visa you have. If you want to prolong the duration of visa, you need to report the divorce and verify the reason to stay in Korea to the Immigration Office.
For F-5 visa holders, the visa won’t be affected by the result of divorce. They don’t have to surrender their F-5 visas or have to leave the country either.
For F-2-1 visa holders, the visa will be valid until the visa expiration date. Immigration Office will allow you to extend your visa on the following cases.
  • When your divorce is caused by your Korean spouse
  • When you have custody of the child born in the marriage
Q2: We are a couple, both foreigners, considering getting divorce under the mutual agreement while we are here in Korea. Can the Korean government do that?
A2: Except in the case when mutual agreed divorce is not accepted by the law in your country, as long as you both have an alien registration card issued by the Korean Government, foreigners can process their divorce in Korea. Those who are residing in other cities in Korea, still need to process the divorce at the Seoul Family Court. Required documents are alien registration card, passport, a marriage certificate both in Korean and English, and an interpreter.
**The Seoul Global Center provides free legal advice service every Monday, Wednesday and Friday from 2pm to 5pm.

Content Provided by: Seoul Global Center Blog

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Sean Hayes may be contacted at: SeanHayes@ipglegal.com

Child Abuse in Korea - "Professionals" Required to Report Crime: Sentences Increased & Police Receiving More Training on the Needs of Victims

Most crimes, in Korea, related to the most vulnerable in society are seeing more attention by the police & prosecution and greater sentences from judges - child abuse is no exception.

In Korea, child abuse may be punished under the Act on Special Cases Related to the Punishment etc. of Child Abuse Crimes (아동학대범죄의 처벌 등에 관한 특례법).  Some individuals may be held civilly liable (fined) for not reporting child abuse.

The law defines a child as anyone under the age of 18 (legal - Western age).  To report a crime, it is advisable to contact your local police office or call 112.  A formal statement may be given to the police in writing.  If you are unable to communicate in Korean, it is advisable to bring a Korean-speaking friend.

Child Abuse in Korea Defined
Child Abuse
The following is considered, in Korea, child abuse:
  1. Harm inflicted on child that may damage the health and welfare of the child;
  2. Physical, sexual or psychological abuse of a child; and
  3. Cruel acts that may impede the natural growth of a child.
Affirmative Duty to Report
"Professionals" have an affirmative duty to report child abuse.  Professionals, include, teachers (even Hagwon teachers) and all other school personnel.  The punishment for not reporting a child abuse crime for a "professional" is a fine of up KRW 5million.  A fine may lead, for foreigners, to deportation

For more information on Child Abuse in Korea please visit: National Child Protection Agency. Yes, Korea has a government agency for everything. 

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Sean Hayes may be contacted at: SeanHayes@ipglegal.com.

Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty. Sean is ranked, for Korea, as one of only two non-Korean lawyers as a Top Attorney by AsiaLaw.

3/02/2015

Starting a Business in South Korea: Top Post from the Korean Law Blog

We write many posts on the Korean Law Blog on entering the Korean market.  However, the list is getting so large that many people have requested that we make a list of the posts that we feel are the most useful for those entering the Korean Market.  Thus, here we go.  More posts will be added to this list as they are written:
Please, also, take a look at the labels to the right and, also, click through to the other articles noted within the articles above.
Thanks for reading and if you are interested in any specific topic - please let us know.  
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Sean Hayes may be contacted at: SeanHayes@ipglegal.com.

Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty. He is ranked, for Korea, as one of only two non-Korean attorneys as a Top Attorney by AsiaLaw.

2/26/2015

South Korea's Adultery Law found Unconstitutional by Constitutional Court of Korea - Let the Parties Begin

The Korean Constitutional Court ruled, today, in a 7-2 decision that the long-standing law banning adultery was unconstitutional.  The Korean adultery law allowed up to a two-year jail sentence.  

The Constitutional Court of Korea noted that "even if adultery should be condemned as an immoral act, state power should not intervene in an individuals' private lives."  The Court, also, noted that: "Considering the level of social criticism it is difficult to bring about the intended precautionary effects. In fact, the law has rather been used as a means of divorce for those who committed more faults yet wished to break the relationship, and, also, as a means of blackmailing erratic housewives."

The majority opinion released by the Court, also, went on to say that the law "violates individuals' freedom to choose a sexual partner and their right to privacy. Not only is the anti-adultery law gradually losing its place in the world, it no longer reflects our people's way of thinking." This was the fifth time the Court had looked at the constitutionality of the law.

The two-justice dissent noted that: “Adultery is an act that damages the marriage-based system and has a destructive impact on families. Therefore, it is not included in the scope of an individual’s sexual rights . . .. The abolishment of the adultery law ay lower the level of sexual morality and, thereby, accelerate the dissolution of the family system."

I would have loved to see more discussion of the power of the Court - not, simply, arguments that the law is "good" or "bad" law.  

What do you think? Some U.S. States still have adultery laws, however, these states do not enforce the laws. 
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Sean Hayes may be contacted at: SeanHayes@ipglegal.com.

Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty. Sean is ranked, for Korea, as one of only two non-Korean lawyers as a Top Attorney by AsiaLaw.

Korea's Criminal Procedure Act: Pre-Trial Detention in Korea

The Korean Criminal Justice System works, in many aspects, very differently from the American Criminal Justice System.

One aspect of the system that leaves many of our clients puzzled is the pre-trial detention system in Korea.  Korea's Criminal Procedure Act Article 92 details the maximum detention periods while the Korean prosecutor's investigation is pending.  The following does not apply, in many respects, to those under the SOFA:
  • After being arrested, a defendant may be held for up to 48 hours without being officially charged. In the United States, in most cases, a defendant may, only, be held for 24 hours. 
  • Depending on the charges in the case, criminal defendants will be held in jail throughout the entirety of the prosecutor's investigation. The opportunity for bail is very limited. This means that, after the initial hearing in front of a Korean judge an arrest warrant will likely be issued for your arrest and you may spend a maximum of two months in jail while the prosecutor builds their case. These two months may be extended for up to six months. A sentence, in most cases, must be delivered within six months of detention. In the United States, bail is given to a defendant in all but the most exceptional of cases. 
These facts show that, beginning immediately after detention, the clock starts ticking on your freedom. You can quickly go from freely walking the streets of Korea to suddenly being locked up for six months before you are even sentenced.  The representations of the police that if you cooperate - all will just go away - is, typically, not true. Once you're behind bars, it will be extremely difficult to manage your defense or take necessary steps to acquire legal representation in Korea that is adequate for your needs. Plan ahead. 

We also find that being the focus of a criminal investigation, in Korea, tends to stress clients out so much that they don't think clearly about how to deal with their situation. Clients, naturally, become defensive, insecure as to what to do, make rash decisions, and even sometimes break down emotionally - all at a time in their lives when keeping a clear head is perhaps the most crucial thing of all.  Find a trusted friend or family member that will assist in making decisions. 

We can't stress enough, the choice of a criminal defense attorney is critical.  When your freedom is at stake, you need defense lawyers with experience and grit - not a mere paper pusher. 

Other articles on Korean criminal law that may be of interest:

  • Signs that You Hired a Great Korean Defense Attorney
  • Criminal Punishment of Corporations for Actions of Employees
  • Misunderstanding of Suspension of Criminal Sentence in Korea 
  • Foreigners' Drug use in Korea
  • Criminal Lawyers in Korea
  • Good Lawyers Receive Not Guilty Verdicts


  • To read Article 92 of Korea's Criminal Procedure Act please click:
    Article 92 (Detention Period and its Renewal)

    To read the Korea's Criminal Procedure Act click:
    Criminal Procedure Act
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    Sean Hayes may be contacted at: SeanHayes@ipglegal.com.
    Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty. Sean is ranked, for Korea, as one of only two non-Korean lawyers as a Top Attorney by AsiaLaw.

    2/24/2015

    Small Business Compliance in Korea: No Not Only for the Big Boys

    We see clients, in Korea, at polar opposites when in comes to compliance - the works or hold everything. 

    The excuse of small companies, that often holds up everything, is usually money.  However, in reality, the cost is, normally, not significant and the advice of proactive counsel, often, leads to more business and less headaches. 

    We find, that it is, often, more important for a small company to engage in a Korean compliance program, since, when troubles occur they are less likely to be able to pay for the time necessary for the counsel to rectify the problem and therefore more likely to perish because of the issue. 

    For example, we had a client that was audited by the Korean National Tax Service, the result was a tax lien, Immigration hold and a less-than-happy wife.  The large amount owed was caused by the lack of an understanding of the various expenses that could be deduced and the lack of the business registering their business as a corporation. 

    The basics to any Compliance Program, in Korea, includes at a bare minimum the inclusion of the review of the following:
    1. Company Formation
      Review of the structure of the company, business scope, joint venture agreements, foundation documents and the company's capitalization.  We, often, find companies that have critical errors that cause the companies not to utilize tax deductions and government programs while adding risk to their business.  
    2. Business Licenses/Permits
      Review of business licenses, local permits and necessary laws governing business.  I can't name the number of businesses we have seen that are operating in violation of Korean law.  Often the solution is simple and cheap.
    3. Accounting & Tax
      Review of the bookkeeping structure, accounting practices, invoicing and tax reporting.  Most accountants, in Korea, are less than proactive.  Get a proactive accounting audit and you will, likely, pay less taxes.
    4. HR Practices Review of employment agreements, independent contractor agreements and the employee handbook - if any.  We, often, see clients without even a basic understanding of Korean employment law.  The largest risk facing many employers, in Korea, is labor.  A lack of an understanding and you will be, at sometime, burning time and money at the Labor Board or even the prosecutor's office. 
    5. 3rd Parties AgreementsReview of all agreements with third parties including supplier agreements, client/customer agreements, NDAs, vendor agreements and the like.  Too often, issues arise with third parties that leads to unpaid invoices, tax audits and other government agency audits.
    6. Due Diligence/Risk AssessmentDue Diligence on key parties that you work with - when not feasible, a nuanced risk assessment.  I wrote about this in many posts - check out: Listen to my Mother: JVs in Asia
    7. Management StructureReview of the management structureOften the structure, in of itself, lends itself to problems. 
    We, also, advise having a consultant review the marketing, management, client acquisition, client retention systems etc. within your company if your company is on a fast growth track.  Often, these consultants, can lessen the learning curve, while, adding more business and lowering costs of doing business.  Many proactive law firms have great individuals that are more than capable. 
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    Sean Hayes may be contacted at: SeanHayes@ipglegal.com.

    Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty. Sean is ranked, for Korea, as one of only two non-Korean lawyers as a Top Attorney by AsiaLaw.

    2/17/2015

    Happy Lunar New Year

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    Sean Hayes may be contacted at: SeanHayes@ipglegal.com.

    Sean Hayes is co-chair of the Korea Practice Team at IPG Legal. He is the first non-Korean attorney to have worked for the Korean court system (Constitutional Court of Korea) and one of the first non-Koreans to be a regular member of a Korean law faculty. Sean is ranked, for Korea, as one of only two non-Korean lawyers as a Top Attorney by AsiaLaw.