Basic Rule 1. Which proceedings should foreign husband and wife residing in Korea follow for divorce?

Foreign husband and wife residing in Korea who want divorce may get a divorce at the Family Court in Korea (in any area that has no family court, the divorce proceedings may be taken at the relevant district court).

Divorce in Korea is composed of the following two (2) types:(1) divorce by mutual agreement and (2) judicial divorce. The divorce by mutual agreement is available only when both husband and wife are Korean. If either husband or wife is a foreigner, they may get a divorce only by the judicial divorce.
The Judicial divorce under the Korean law consists of 1)divorce through mediation procedure and 2)divorce litigation. In the event that foreign husband and wife agree upon the intention to get a divorce and conditions of divorce, the divorce mediation proceedings are available. Otherwise, they shoud get a divorce through litigation procedure.

Basic Rule 2. Is the divorce by the Korean court recognized effective in their own country?

Generally, the validity of divorce performed in a duly way in any country is recognized in their own country.  If foreign husband and wife get a divorce lawfully at the Korean court through judicial divorce procedure under the Korean law, the divorce may be also recognized effective in their own country.

1. In the event husband and wife agree upon the intention to get a divorce and conditions of divorce

1-A. When both husband and wife are foreigners and reside in Korea

(Situation)
We, Canadian husband and wife residing in Korea, have agreed to get a divorce. We are going to stay in Korea for the future three (3) years and seek to take proceedings for divorce in Korea. We have no child and have agreed upon property division.

Q 1) In Canada, the separation period is essential for divorce. Is such also required in Korea?

If Canadian husband and wife get a divorce in the manner recognized in Korea, the validity of divorce may be recognized in Canada. The Korean law does not require the separation period as a prerequisite of divorce and, thus, it is unnecessary for Canadian husband and wife who go through the divorce proceedings in Korea to have the separation period.

Q 2) Which proceedings will be taken and how much time will it take for divorce?

If husband and wife agree upon the intention to get a divorce and conditions of divorce, it is the most convenient to get a divorce according to the ‘divorce mediation’ proceedings at the Family Court in Korea. The divorce by the divorce mediation means the one through the court’s mediation proceedings, which is simple and ends quickly.

Once either husband or wife files an application for divorce mediation, the court generally decides the date of hearing within one (1) or two (2) months therefrom. If both of husband and wife are present at the court on the hearing date and confirm their intention and conditions of divorce to the judge, they get a divorce on the same date.

In these proceedings, generally, either husband or wife appoints a Korean lawyer as his/her attorney-in-law and the Korean lawyer and the other party are present at the court on the date of divorce mediation for confirmation of their intention.

Thereafter, the court sends husband and wife an ‘Divorce ruling’ which has the same validity as the Court judgment. In case foreigners want to report or register the divorce in their own country, they can do that by submitting this divorce ruling after translation and notarization to the authorities concerned in their own countries.

The divorce mediation proceedings in the Korean court is very simple and fast in that those take only one (1) to two (2) months from the application until the mediation date and require only mutual agreement of husband and wife.

However, the divorce mediation procedure may be available only to the extent both of husband and wife agree upon the intention to get a divorce and conditions of divorce. If they fail to reach such an agreement, please note that it is impossible to use the divorce mediation proceedings.

Q 3) What are the documents required?

The required documents are certificate of marriage, copy of passports and certificates of alien registration of both husband and wife (only to the extent alien registration has been made), and agreement on divorce (signed by both husband and wife). The application for divorce mediation will be submitted to the Korean Family Court, together with the required documents set forth above.

1-B. When both husband and wife are foreigners and any one of them stays overseas

(Situation)
I am an Italian residing in Korea.  My wife is an African who left home one (1) year ago and is currently staying in London.  I have agreed to divorce my wife and am looking for an easy way for divorce.  Since divorce in Italy takes so long time, I hope to get a divorce in another country.

Q 1) Is there any way to get a divorce in the Korean court without my wife coming into Korea?

Even though either husband or wife stays overseas, if husband and wife agree upon the intention to get a divorce and conditions of divorce, they may get a divorce at the Korean court without the foreign resident coming into Korea.

To follow this way, Husband or wife staying overseas appoints a Korean lawyer as his/her attorney-in-law and applies for divorce mediation procedure at the Korean Family court through his/her attorney-in-law. Then, the Korean lawyer and the other residing in Korea are present at the court on the hearing date for confirmation of their intention to get a divorce. In such way, divorce proceedings may be easily and quickly performed without his/her spouse staying overseas coming into Korea.

In order for the spouse staying overseas to appoint his/her Korean lawyer, he/she should obtain notarization of a power of attorney for the Korean lawyer in the country where he/she resides and send it to the Korean lawyer by e-mail or air mail.

Q 2) Which proceedings will be taken and how much time will it take for divorce?

Husband and wife get a divorce according to the divorce mediation proceedings in Korea which will take one (1) to two (2) months from the date of filing of the application for divorce.

Q 3) What are the documents required?

The required documents are certificate of marriage, copy of passports and certificates of alien registration of both husband and wife (only to the extent alien registration has been made) and agreement on divorce (signed by both husband and wife).

Since the intention of the spouse staying overseas to get a divorce should be certified in writing, the spouse should obtain notarization of the agreement on divorce and a power of attorney for the Korean attorney in the country where he/she stays and then send them to the office of the Korean lawyer by e-mail or air mail.

1-C. When either husband or wife is a Korean and the other is a foreigner and both of them reside in Korea

In this case, they may get a divorce by the ‘immediate mediation for foreigners’ system of the Family Court.  Under this immediate adjustment for foreigners system, either husband or wife, a Korean, and the other, a foreigner, who agree to get a divorce may get a divorce quickly.

Under this system, if the application for divorce mediation is filed before 14:00 p.m. of each day, the responsible judge confirms their divorce at 16:00 p.m. of the same day and they get a divorce; provided, however, that this system is applied only when any one of husband and wife is a foreigner and both of them agree upon the intention to get a divorce and conditions of divorce and, thus, is unavailable when both of them are foreigners or fail to agree to get a divorce.

1-D. When either husband or wife is a Korean and the other is a foreigner who stays overseas

Even in the event a foreign spouse does not stay in Korea, it is possible to get a divorce by the immediate mediation for foreigners system of the Family Court if they agree to get a divorce; provided, however, that in order for the foreign spouse to get a divorce without coming into Korea, he/she should appoint a Korean lawyer as his/her attorney-in-law who should be present at the court on the date of such immediate adjustment, together with the Korean spouse, for confirmation of his/her intention to get a divorce.

2. When either husband or wife is missing

(Situation)
I am a U.S. citizen living in Korea.  I had lived with my wife, a Filipina, in Korea who returned to the Philippines two (2) years ago.  Currently, I am unaware where she is and even unable to contact her.  I hope to marry another woman.  Can I get a divorce at the Korean court even though I don’t know the whereabouts of her?

Q 1) Even when either husband or wife is missing, is it possible to get a divorce at the Korean court?

In order for husband and wife both of whom are foreigners to get a divorce at the Korean court, in principle, the defendant’s address (residence) should be in Korea. However, in the event the defendant is missing in the divorce litigation, such principle is not applied and, thus, it is possible to get a divorce.

Q 2) Which proceedings will be taken and what are the documents required?

Either husband or wife should file a divorce suit against the other who is missing with the Family Court in Korea.
The documents required are as follows: Certificate of marriage, passport and certificate of alien registration of the plaintiff (only to the extent alien registration has been made), evidence proving that the defendant is missing (arrival-departure record, statement of the person who is aware of the defendant’s missing, etc.), etc. Once the divorce suit is filed, the Family Court in Korea proceeds with the divorce suit through the service of process system and finally renders the judgment of divorce. It will take approximately six (6) months to one (1) year.

3. When husband and wife fail to agree upon the intention to get a divorce and conditions of divorce

(Situation)
I am a British living in Korea.  Since my wife, a Korean, drinks alcohol a lot and frequently made an assault upon me, I want to get a divorce, but she doesn’t.  I want to know how I can get a divorce in Korea.

Q 1) My wife refuses to get a divorce, but I want to divorce my wife. How can I get a divorce?

In the event she does not agree to get a divorce, husband may get a divorce by filing a divorce suit with the Family Court in Korea and obtaining the judgment of divorce from the court.

Q 2) Which country’s law will be applied to the divorce suit in this case?

In the event a couple of international marriage files a divorce suit, the following will be applied: (1) laws of identical home country of husband and wife, (2) laws of identical country in which they have their habitual residence and (3) laws of the place having the closest relation with husband and wife.

However, in the event either husband or wife is a Korean having habitual residence in Korea, the divorce suit should be in accordance with the Korean law (Article 39 of the Private International Law). Accordingly, for the divorce suit between a British husband and a Korean wife residing in Korea, the Korean law will be applied.

Q 3) What is required for winning the divorce suit and how much time will it take for the suit?

Under the Korean law, either husband or wife should prove that his/her spouse has the cause of judicial divorce in order to win the divorce suit. The causes of divorce prescribed by the Korean law are as follows: (1) his/her spouse’s unfaithful act, (2) his/her spouse’s intentional neglect, (2) when he/she received extremely unfair treatment from his/her spouse or lineal ascendant of the spouse, (4) when his/her lineal ascendant received extremely unfair treatment from his/her spouse, (5) when his/her spouse’s fate is unknown for three (3) years or more, or (6) when there is any material cause due to which is difficult to maintain marriage.

Under the Korean law, your wife’s assault is considered as the case ‘when either husband or wife received extremely unfair treatment from his/her spouse’ as set forth in (3) above. In order to get a judicial divorce from wife, you should submit with the court evidence of your wife’s assault - photographs, moving picture and statement of witnesses showing the scene of assault or injury, etc., or record of criminal accusation due to assault.

Q 4) I purchased a house in my wife’s name during marriage life for ten (10) years. Whenever we quarreled, she used to tell me that she would sell the house and have all the amount of such sale. Upon divorce, can I have the right to property division with respect to the house?

According to the Korean law, properties obtained jointly by husband and wife during marriage life are subject to property division upon divorce and, thus, you may have the right to property division with respect to the house registered in your wife’s name.

In order to prevent your wife from disposing of the house at her own discretion and to get property division on a safe basis, you should file a petition for preliminary attachment or disposition preventing from such disposition before filing the divorce suit. Such preliminary attachment or disposition will take two (2) to three (3) weeks.

Q 5) I have a son of eight (8) years. Since my wife does not care him well, I want to have child custody of my son. Is it possible?

In order to have child custody of your son, you should also file a claim for designation as custodial parent at the time of bringing the divorce suit. Upon designation of custodial parent, the Korean family court considers child’s welfare as the most important criteria.

Practically, if mother asserts child custody of a very young child, there is very much possibility for mother to be custodial patent unless she has any special disqualification. When a child is more than fifteen (15) years old, the court respects the child’s intention.

Therefore, in this case, if mother asserts child custody of your son, you should prove special reason why mother should not be custodial parent, but such proving is very difficult in general. In reality, it is hard for father to have child custody.

4. In case of de facto marriage

(Situation)
I am a U.S. woman living in Korea who has operated an English language private school for the past four (4) years that I have lived with Korean husband.  Though we failed to make report of marriage in Korea, our parents and friends think that we are a married couple.

Some time ago, I knew my husband’s unfaithfulness and then have been separated from him.

I want to get a divorce from him, but the Cheonse security deposit saved by both of us is made in his name.

Q 1) If I get a divorce from my husband, I want to receive property division from the Cheonse security deposit. Is it possible?

In the event husband and wife live together and maintain marital relationship without report of marriage, the Korean law prescribes such type of marriage as ‘de facto marriage’ and protects it to the similar extent as de jure marriage.

In the event de facto marriage fails, either party to de facto marriage may file a claim for payment of consolatory compensation and for property division against the other party.

Accordingly, if money saved by joint effort of husband and wife is the Cheonse security deposit in the name of husband in the state of de facto marriage, you may receive property division from the Cheonse security deposit.

Q 2) If I intend to receive my share in the Cheonse security deposit in the name of husband, which proceedings will I take?

You should file a claim for property division arising from termination of de facto marriage with the Family Court in Korea against your husband.

In order to prevent your husband from disposing of the Cheonse security deposit at his own discretion, you should file a petition for preliminary attachment of the Cheonse security deposit before filing such claim.