Grounds for Divorce in Korea: Malicious Desertion

by Kang & Shin | 2025. 11. 16 | Divorce

When a marriage in Korea breaks down and the spouses cannot agree to a consensual divorce (협의이혼), one spouse must file for a judicial divorce (재판상 이혼). This requires proving one of the six legal grounds for divorce in Korea. Among these, malicious desertion divorce in Korea, legally termed malicious desertion (악의의 유기) under Civil Act Article 840(2) and often described in practice as a form of spouse abandonment in Korea, is frequently misunderstood, especially in divorce in Korea for foreigners. This article explains how Korean courts define malicious desertion and how case applies this in concept, clarifying an area where many expatriates are unfamiliar with Korea’s strict interpretation of marital duties.

What is “Malicious Desertion”?

Article 840(2) of the Civil Act allows a spouse to file for divorce if “one spouse has been maliciously deserted by the other spouse.”

This isn’t just about a temporary separation to cool off after an argument. Legally, it means one spouse has, without a justifiable reason, unilaterally decided to abandon the core duties of marriage (i.e., living together, providing support, and cooperating) for a substantial period.

The Korean Supreme Court has defined this as one spouse, without just cause, abandoning the essential duties of married life, which are:

Cohabitation: Living together as a married couple.
Support: Providing financial support and care.
Cooperation: Working together to maintain the family unit.

To qualify as “malicious desertion,” the act must meet several criteria:

It must be intentional. The term “malicious” implies an intent to end the marriage or, at minimum, a willful disregard for the marital duties that leads to its breakdown.
It must be unilateral. If spouses mutually agree to live apart, it does not constitute desertion.
It must be without “just cause.” This is the most critical element. Leaving a spouse is not desertion if there is a justifiable reason.
It must be for a substantial period. A brief departure after a quarrel to cool off does not qualify. The abandonment must be persistent.

How Korean Courts Analyze Desertion Claims

Courts look at the specific facts of each case to determine if the departure was “malicious” and “without just cause.”

Cases Where Malicious Desertion Was Recognized

Abandoning a Mentally Unstable Spouse: In one case, a husband, facing religious conflict with his wife, asked for a divorce. When the wife refused, he left, became a monk, and they lived apart for over 10 years. The Court held that the marriage’s breakdown was caused by the husband maliciously deserting his wife (Supreme Court of Korea, 90Meu583).
Unilateral Departure Amid Suspicion: A husband was repeatedly violent, traveled secretly with another woman, and refused to explain suspicious purchases. When his wife questioned him, he left home unilaterally. The Court found this was malicious desertion, placing primary responsibility on him (Supreme Court, 2006Meu959).
Neglect and Prolonged Absence: A husband traveled to the U.S. six times in one year, staying abroad for over 220 days and neglecting his family. This conduct, which also raised suspicions of an affair, was recognized as malicious desertion (Seoul High Court, 2002Reu90).

Cases Where It Was NOT Malicious Desertion

Fleeing Violence or Abuse: This is the most important “just cause.” If a spouse leaves the home to escape physical violence, severe verbal abuse, or threats from the other spouse, it is not malicious desertion. The separation is considered an unavoidable act of self-preservation (Supreme Court of Korea, 80Meu53).
Temporary Separation to De-escalate: A husband left the home briefly to defuse severe family conflict and the “extreme coldness” shown by his wife and children, but had no intention of ending the marriage. The Court held that this did not constitute malicious desertion (Supreme Court of Korea, 85Meu6).
Failure to Meet Excessive Financial Demands: A husband did not provide the amount of living and educational expenses his wife demanded. Because her demands were excessive relative to his income, the Court held that his refusal did not constitute a malicious breach of his duty of support and therefore did not amount to malicious desertion (Seoul High Court, 2005Reu1902).
Leaving at the Other Spouse’s Insistence: A husband left the home only because his wife demanded it during a quarrel. His later refusal to pay living expenses was viewed as an attempt to pressure her into apologizing, not as a malicious intent to abandon the marriage. The Court therefore held that this did not constitute malicious desertion (Seoul High Court, 2004Reu1790).

Deadlines and Related Claims

Time Limits: A Key Difference

Unlike claims for infidelity (Article 840(1)) or ‘other serious causes’ (Article 840(6)), a claim based on malicious desertion under Article 840(2) is not subject to the same short statutory time limits.”

The right to file for divorce based on desertion is generally considered a “formative right” subject to a 10-year exclusion period. However, the most important rule is this:

As long as the malicious desertion is ongoing, meaning the spouse is still gone, has not returned, or continues to refuse the marital duties, the lapse of time does not extinguish the right to file for divorce (Supreme Court of Korea, 96Meu1434).

Pleading With Other Grounds (e.g., Infidelity, “Other Serious Causes”)

Malicious desertion, infidelity, and “other serious causes” are all separate and distinct legal grounds. However, a single set of facts can often be used to support multiple claims.

For example, if a spouse leaves the family home, refuses to provide any financial support, and begins living with another person, their conduct may satisfy three separate grounds:

An Act of Unchastity (Article 840(1)) – For the relationship with the third party.
Malicious Desertion (Article 840(2)) – For abandoning the home and the duties of support and cohabitation.
Other Serious Cause (Article 840(6)) – The totality of these actions (the abandonment, the infidelity, and the resulting financial and emotional distress) constitutes a “serious cause” that makes continuing the marriage impossible.

In such situations, it is common and practical to plead all applicable grounds in the divorce lawsuit. The court only needs to find that one of the grounds has been proven to grant the divorce.

Frequently Asked Questions

Q1. My spouse and I mutually agreed to live separately. Can I claim desertion?

No. A key element of “malicious desertion” is that it is unilateral and against the will of the other spouse. If you both agreed to the separation, it is not “malicious” (Supreme Court of Korea, 85Meu87).

Q2. I had to leave my home because I was afraid of my spouse. Did I “desert” them?

No. Fleeing your home to escape violence, threats, or severe abuse is considered a “justifiable reason.” Your spouse cannot claim you deserted them. In fact, their conduct may constitute a separate ground for divorce (Extreme Maltreatment, Article 840(3)).

Q3. How long is a “substantial period” of time?

The law does not give a specific number of days or months. It is assessed by the court. A brief departure to “cool off” for a few days is not enough. However, a unilateral abandonment with no contact for many months or years will usually satisfy the “substantial period” requirement for malicious desertion.

Q4. My spouse left me years ago. Is it too late to file for divorce on this ground?

Likely not. As long as the desertion is continuing (i.e., they are still gone and have not fulfilled their marital duties), your right to file for divorce is not lost simply because many years have passed.

Navigating the Path Forward

Proving malicious desertion requires a careful legal argument. You must show the court not just that your spouse left, but that they did so unilaterally, without a good reason, and with the intent to abandon the marriage. This often involves detailed evidence of your communications, financial records, and the circumstances of the separation.

Navigating this, especially as a foreigner getting divorce in Korea, can be overwhelming. Working with a skilled English speaking divorce lawyer in Korea is essential to build your case, present your evidence effectively, and ensure your rights are protected. For a thorough case assessment, schedule a consultation with an experienced legal team.