In many countries, couples who live together without formally registering their marriage may still be recognized as being in a legal relationship under the concept of “common law marriage.” But how does this apply in Korea?
The answer lies in what Korean law refers to as a “de facto marriage” (or Common Law Marriage). While Korea has a civil law system (opposite of a common law system), Korean courts do recognize certain relationships as legally significant, even without formal marriage registration.
In this post, we’ll explain what a de facto marriage is under Korean law, how it’s recognized, and what it means for foreigners residing in or moving to Korea.
What Is a De Facto Marriage in Korea?
A de facto marriage refers to a relationship between two people who live together and present themselves as a married couple but have not legally registered their marriage under Korean law.
For a marriage to be legally recognized in Korea, both substantive and formal elements are required:
- Substantive Elements: Mutual consent to live together as husband and wife, both parties being of legal age, no close blood relation, no other existing marriage, etc.
- Formal Elements: Registration of marriage at the local government office.
When a couple meets the substantive elements and lives together as husband and wife but fails to register the marriage, their relationship may still be recognized by Korean courts as a de facto marriage.
How to Prove De Facto Marriage in Korea
Below are common types of evidence that Korean courts consider when determining whether a de facto marriage exists:
- Wedding photos or records of a ceremony
- Proof that both families were introduced and treated each other as in-laws
- Participation in family events, such as traditional memorial rites, birthdays, or family weddings
- Matching addresses on resident registration and records showing how long you’ve lived together
Note: While a longer period of cohabitation can strengthen your case, there is no strict time requirement. What matters most is that the couple intended to live as husband and wife and conducted themselves accordingly in daily life.
Rights and Obligations in a De Facto Marriage
Although not formally registered, couples in a de facto marriage have similar rights and responsibilities as legally married couples. These include:
- Duty of fidelity, mutual support, and cooperation
- Liability for everyday household debts
- Eligibility to seek property division if the relationship ends
- Right to claim compensation for wrongful dissolution of the relationship
However, there are notable limitations:
- The de facto spouse cannot inherit property upon the other’s death under Korean inheritance law.
- There is no recognition of in-laws or family relations that would normally arise in a registered marriage.
Ending a De Facto Marriage in Korea
Unlike legal marriages, which require a formal divorce a de facto marriage can be dissolved without court proceedings. The relationship can end by mutual agreement or even by unilateral notice, there is no legal requirement for documentation or procedure.
However, if there is a dispute over property division or child custody, parties may need to bring a civil action before a Korean court.
Important Legal Considerations After Ending a De Facto Marriage
When a de facto marriage comes to an end, various legal issues may arise. While the couple was not legally married in the formal sense, Korean courts may still recognize rights and responsibilities similar to those of legally married spouses.
Property Division
Assets accumulated during the relationship are generally presumed to be jointly owned, even without formal registration. Either party may file a civil claim for division of property, particularly if the assets were acquired through mutual effort during the relationship.
Compensation for Emotional Distress
If one party unilaterally or wrongfully ends the relationship (e.g., ends the relationship due to infidelity), the other party may be entitled to claim damages for emotional distress.
Child Custody and Support
Children born in a de facto marriage are considered “children born out of wedlock.” If the father acknowledges paternity, both parents share responsibility, and the court may issue orders regarding child support or custody. However, if the father has not acknowledged paternity, a paternity claim must first be filed before any child support can be pursued.
Final Thoughts for Foreigners in Korea
For foreigners living in Korea, it’s important to understand that a relationship may be legally recognized as a de facto marriage, even without formal registration. If you are facing legal issues related to such a relationship, we strongly recommend seeking professional legal advice to fully understand your rights and obligations under Korean law.
At Kang & Shin we provide dedicated legal support to foreign clients navigating family law matters in Korea. Whether you’re entering or ending a relationship, or addressing related legal concerns like property division or child custody, we are here to guide you every step of the way.