Each year, thousands of international couples make the difficult decision to end their marriage. Divorce can be financially and emotionally challenging, especially for foreigners navigating an unfamiliar legal system in Korea. As English-speaking lawyers dedicated to providing legal aid to the international community in Korea, we at Kang & Shin understand the anxieties and concerns that often arise. This article provides a basic overview of Korean court jurisdiction in divorce cases involving international couples and explains the types of divorce procedures recognized under Korean law.
Understanding the Basics: Jurisdiction
When dealing with an international divorce, one of the most important considerations is whether a Korean court has jurisdiction over the case. This jurisdiction is governed primarily by the Act on Private International Law, which requires a “substantial connection” between either of the spouses or the circumstances of the divorce and Korea. In other words, Korean courts must be satisfied that there is a legitimate basis for the case to be heard within the Korean legal system.
A common example of such a connection is when at least one spouse resides in Korea. In such cases, Korean courts are generally willing to exercise jurisdiction over the divorce proceedings, regardless of the couple’s nationality or the country where the marriage originally took place. This means that a Korean court will most likely hear your divorce case, no matter your citizenship or where you originally tied the knot.
Paths to Divorce
In Korea, there are primarily two ways to dissolve a marriage:
- divorce by agreement; and
- judicial divorce.
Judicial divorce can be further categorized into two types based on the procedure:
- divorce by mediation; and
- divorce by litigation.
Let’s delve into each of these options more deeply.
Divorce by Agreement
If both spouses agree to end the marriage, they may proceed via divorce by agreement. Although the divorce is based on mutual consent, certain legal procedures must be followed for it to be valid. Most importantly, the couple must file an application with the Family Court to confirm their intention to divorce. This step ensures that both parties genuinely consent to the divorce.
After submitting the intention to divorce with the court, a mandatory waiting period applies (either one or three months depending on if there is a child to take care of). This period gives the parties a last chance to reconsider their decision. Once the waiting period ends, the court confirms the agreement, and the couple can register the divorce at their local district office. The divorce becomes legally effective upon registration.
If the couple has children to take care of (i.e., minors), they must reach an agreement on child custody and parental authority. This agreement must be documented and submitted to the court when requesting confirmation of the divorce. If no agreement is reached, the court will make a determination based on the best interests of the child. Additionally, issues such as division of property or damages for emotional distress can also be settled by mutual agreement. If the parties cannot come to an agreement on the division of property, the court shall determine the amount and method of division upon request by either party.
Judicial Divorce in Korea
1. What is a Judicial Divorce?
A judicial divorce refers to a legal process in which one spouse files a divorce lawsuit on the ground that one of the statutory grounds for divorce under the Korean Civil Act have occurred. In such cases, the court examines the grounds and issues a judgment either granting or denying the divorce. This process is based on Article 840 of the Korean Civil Act.
A judicial divorce is a legal process in which one spouse files a divorce lawsuit based on the occurrence of a statutory ground under the Korean Civil Act. In such cases, the court examines the facts and issues a judgment either granting or denying the divorce.
2. Types of Judicial Divorce
Judicial divorce in Korea can be categorized into two types depending on the procedure used: divorce through mediation and divorce through litigation.
1) Divorce by Mediation
Mediation is a legal process that encourages the spouses to resolve their issues amicably through dialogue and mutual compromise, guided by the court. Unlike adversarial litigation, it takes place in a more flexible and informal environment.
Korea adopts a mediation-first principle, which means that, in principle, mediation must be attempted before the case goes through litigation. If a party files a divorce complaint without first applying for mediation, the Family Court will automatically refer the case to mediation.
However, there are exceptions. The court may proceed directly to litigation if: A spouse cannot be summoned except by public notice, or it is apparent that mediation will not succeed even if attempted.
If the couple successfully reaches an agreement during mediation, the divorce becomes final without further litigation. If no agreement is reached, the case proceeds to formal litigation.
2) Divorce by Litigation
A court judgment on divorce will be rendered through litigation in the following cases:
- When neither spouse can be summoned except through public notice;
- When the court determines that mediation is unlikely to succeed;
- When a court decision is made not to proceed with mediation; or
- When mediation is officially concluded without settlement.
In a litigated divorce, the court will assess whether the legal grounds for divorce under the Korean Civil Act are satisfied. These legal grounds include infidelity, malicious desertion, extreme maltreatment, or other serious causes making it unreasonable to continue the marriage. The spouse initiating the lawsuit bears the burden of proof and must present sufficient evidence. Given the formal and adversarial nature of litigation, the process can be time-consuming and emotionally burdensome, underscoring the importance of obtaining experienced legal representation.
Closing Notes
Divorce is never an easy decision, and it becomes even more difficult when international elements are involved. For international couples with ties to Korea, understanding the jurisdictional requirements and available legal pathways is essential to making informed decisions during a challenging time.
At Kang & Shin, we are committed to guiding our international clients through every step of the Korean divorce process. Whether you are seeking an amicable resolution or considering litigation, our bilingual lawyers are here to provide the support and representation you need. If you are considering divorce in Korea and are unsure of your options, we encourage you to reach out for a consultation to discuss your situation.