12/31/2015

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 even if no party to the divorce is a Korean national.

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, language issues 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, thus, errors have not been corrected.  I may be contacted via the email below or via phone. 

Please, also, see the following articles on divorce/separations in Korea that may of use to the reader:
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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.
 
From the Seoul Global Center Blog
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