When spouses in Korea can’t agree to end their marriage by consent, the path is a judicial divorce (재판상 이혼). Among the recognized grounds for divorce in Korea, infidelity, termed an “act of unchastity” under Civil Act Article 840(1), is one of the most common grounds. This guide explains how Korean courts define infidelity, what evidence is needed to build a strong case, and the strict deadlines you must meet. If you are weighing your options, consulting an experienced divorce lawyer in Korea is essential, especially one who is skilled and fluent in English.
What is an “Act of Unchastity” (Civil Act Article 840(1))? A Broad Definition
Under Article 840(1), a divorce can be granted “if the other spouse has committed an act of unchastity.” Korean case law interprets “unchastity” broadly and it is not limited to sexual intercourse (adultery). Conduct that breaches the duty of marital fidelity (e.g., intimate physical conduct, clandestine meetings in circumstances showing a romantic/sexual relationship, or cohabiting with a third party as if spouses) can qualify, depending on degree and context.
It’s important to note two key boundaries established by the courts. First, the act must have occurred after the marriage was legally formed. Conduct after engagement but before marriage does not fall under this specific ground (Supreme Court of Korea, Case 91Meu85). Second, the act must be voluntary. If the conduct was coerced, it is not considered infidelity on the part of the injured spouse (Supreme Court Case 76Meu10).
How Korean Courts Analyze Infidelity Claims
Because the definition is so broad and “infidelity” is a standard of conduct, courts evaluate the specific circumstances of each case. They look at the whole picture, i.e., what happened, how often, the level of secrecy, and how a reasonable person would view the conduct.
For example, the Korean Supreme Court found infidelity in cases involving:
- A husband who was criminally prosecuted for sexually assaulting a female employee. The Court found that this criminal act also constituted an “act of unchastity” for the divorce case. (Supreme Court of Korea, Decisions 83Meu32 & 83Meu33)
- A husband living with another woman as if they were married, even when a physical relationship was impossible due to a stroke and his age. The Court clarified that the emotional and social betrayal was enough to be considered an “act of unchastity.” (Supreme Court of Korea, Decision 92Meu68)
- A husband who developed a romantic relationship with another woman through letters and camping trips. The Court held that this type of relationship constitutes an “act of unchastity.” (Supreme Court of Korea, Decision 66Meu39)
By contrast, the following was not enough for infidelity.
- The Court held that a wife’s friendly interactions with another man, including meeting at a cabaret and traveling with him by train, were not enough on their own to constitute an “act of unchastity” (Supreme Court of Korea, Decision 89Meu1115).
- In one key case, a husband met a woman by chance on a one-day sightseeing tour. They took photos, returned to Seoul the next day, and stayed in separate lodgings. After more than two months with no contact, he met her again on a business trip solely to show documents and dispel his wife’s suspicions about that first encounter. As it got late, they stayed in the same apartment but slept in separate rooms.. The Court held that these circumstances, standing alone, did not amount to an “act of unchastity.” (Supreme Court of Korea, Decision 85Meu6).
Deadlines, Consent & Forgiveness: When Your Right to a Divorce Disappears
Even if you have clear proof of infidelity, your right to file for divorce is not absolute. Article 841 of the Korean Civil Act places strict limits on these claims, and your right to file can be permanently lost in three key ways:
- Prior Consent: You approved of the conduct before it happened.
- Subsequent Forgiveness: You forgave the conduct after you found out about it.
- Strict Time Limits: You missed the legal deadlines for filing (six months, or two years, explained in detailed below)
Prior Consent
Prior consent is a clear and affirmative indication (either spoken or implied) that one spouse will not object if the other becomes unfaithful.
Before the Constitutional Court’s 2015 decision striking down the crime of adultery as unconstitutional, the term “consent” (종용) under the Korean Criminal Act had a specific legal meaning: it extinguished the right to file a criminal complaint for adultery. The same concept continues to influence how courts interpret marital consent in civil divorce cases.
Korean courts have often found implied consent in situations where both spouses have genuinely agreed to divorce and have already separated. In such cases, the couple’s mutual decision to end the marriage is treated as having given prior consent, meaning that if one later begins a new relationship, it cannot be used as grounds for divorce. However, casual discussions about divorce or expressions of conditional willingness to separate do not amount to legal consent. The intent must be genuine and final.
If a court determines that you gave valid consent, you cannot rely on the other spouse’s infidelity as a legal basis for divorce. You may, however, be able to pursue a separate claim for emotional damages depending on the circumstances.
Examples where prior consent was found:
- During a hearing, the husband (through his counsel) formally accepted the wife’s divorce claim in open court. The Court treated this as a clear and mutual agreement to end the marriage, meaning the duty of fidelity was no longer in effect. (Supreme Court of Korea, Decision 90Do1188)
- A couple where both spouses had filed for divorce and, during court proceedings, consistently expressed their shared intent to separate and had already begun living apart. The Court found that even with ongoing disputes about property, their clear and mutual agreement to divorce was enough to constitute consent. (Supreme Court of Korea, Decision 2008Do3599)
What does not constitute consent:
- In one case, a couple attempted to prepare a consensual divorce report, but it was never finalized. The Supreme Court ruled that this incomplete attempt did not establish prior consent. (Supreme Court of Korea, Decision 83Do2504)
- The mere fact that one spouse filed a judicial divorce claim did not automatically mean they had consented to or forgiven the other spouse’s infidelity. (Supreme Court of Korea, Decision 89Do501)
Subsequent Forgiveness (Waiver After the Fact)
Subsequent forgiveness is the injured spouse’s affirmative decision not to pursue responsibility for the other spouse’s infidelity after learning of it. Unlike prior consent (given beforehand), forgiveness is an ex post legal and emotional waiver. Mere knowledge and silent tolerance are not enough, courts require a clear indication that the marriage will continue despite the affair.
Forgiveness may be express (e.g., a clear statement and conduct consistent with reconciliation) or implied from sustained, unequivocal conduct. But to be legally effective, two conditions must be met:
- The forgiving spouse must act voluntarily and with full knowledge of the infidelity.
- There must be a genuine and clearly expressed intention to continue the marriage despite the affair.
The following are case examples of how the Korean Supreme Court interpret forgiveness.
When forgiveness was recognized:
- In one case, the wronged spouse, after learning of adultery, had the third-party affair partner sign a memorandum promising to end the relationship. The Court ruled that this act of taking control and seeking a resolution constituted subsequent forgiveness. (Supreme Court of Korea, Decision 99Do2149)
When forgiveness was NOT recognized:
- A simple statement like “I’ll forgive you if you confess,” is not considered legal forgiveness. The Court sees this as a superficial expression, not a genuine intent to continue the marriage. (Supreme Court of Korea, Decision 91Do2049).
- In another case, a spouse knew their partner was cohabiting with someone else for years but did nothing in response. The Court held that this passive tolerance, or “acquiescence,” did not amount to implied forgiveness. (Supreme Court of Korea, Decision 99Do826)
Strict Time Limits for Filing
A claim for divorce based on infidelity is subject to two strict deadlines, under Article 841. You must file your lawsuit within:
- Six months from the day you learned the facts of the infidelity.
- Two years from the day the act of infidelity itself occurred.
If you miss either of these deadlines, you lose your right to file for divorce on this ground. If the infidelity is ongoing, the clock generally starts once the affair has ended.
It’s important to know that these deadlines apply only to the divorce claim itself. A separate claim for emotional damages (a tort claim) is subject to a different time limit.
Importantly, simply talking about divorce or attending mediation does not stop the clock. The deadline is only met by filing a formal lawsuit in Family Court.
Frequently Asked Questions
Q1. Do I need proof of sexual relationships to win my case?
No. The legal standard is “unchastity” under Civil Act Article 840(1), which is a much broader concept. You only need to show conduct that breaches the duty of marital fidelity (e.g., intimate messages, repeated secret trips together, or romantic cohabitation) supported by evidence.
Q2. I don’t have direct proof. Will circumstantial evidence be enough?
Often yes. Courts assess the totality of circumstances (hotel/travel records, messages, photos, consistent witness statements) to infer an act of unchastity.
Q3. What if I brought up divorce in the heat of an argument, but we stayed together?
That is not legal forgiveness. Forgiveness requires a clear, voluntary decision to continue the marriage after discovering the affair.
Q4. My spouse’s affair partner has caused so much pain. Can I take legal action against them?
Yes. You may bring a separate tort claim for emotional damages against the paramour, subject to distinct proof requirements and limitation periods.
Q5. I missed the deadline. Do I have any other options?
Possibly. Even if your infidelity claim (Article 840(1)) is barred by the time limit, you may qualify under Article 840(6), the “other serious cause” ground. This is fact-specific, so obtain a professional assessment.
Next Steps: Get Expert Legal Advice
As this guide shows, infidelity cases in Korea are complex. They turn on specific facts, nuanced interpretations by the court, and strict deadlines. Proving your case while ensuring all evidence is gathered lawfully is a significant challenge. This is why consulting with an experienced English speaking divorce lawyer in Korea is a critical next step. For a thorough case assessment, evidence planning, and representation, contact our team for a confidential consultation.
From Our “Grounds for Divorce in Korea” Series
6 Legal Grounds for Divorce in Korea: An Overview
Grounds for Divorce in Korea: Infidelity
Grounds for Divorce in Korea: Malicious Desertion
Grounds for Divorce in Korea: Extreme Maltreatment
Grounds for Divorce in Korea: Spouse Missing for 3+ Years
Grounds for Divorce in Korea: “Other Serious Causes” Explained
Can the At-Fault Spouse Divorce in Korea?