Global Legal Monitor

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Global Legal Monitor

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. The best way to minimize this pain is to agree on how to do it in advance. We mentioned prenups in Part 1. 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. 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. 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. Regarding property, the parties can agree on how to divide it, and if they fail to do so, the court will step in. 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. In these cases, offended spouse may file for a judicial divorce. Fairly extreme hardship will need to be shown. 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. 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. 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. You can read her blog at or if there is a legal issue you would like to be addressed, please email askalawyer naver. 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.

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