Monday, August 26, 2013

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

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.