Grounds for Divorce in Korea: Spouse Missing for 3+ Years

by Kang & Shin | 2025. 11. 27 | Divorce

When a spouse disappears and their whereabouts are unknown, the problem in Korea is not just emotional but legal. Civil Act Article 840(5) provides a specific basis in Korean law for what is sometimes called a spouse missing divorce in Korea, a judicial divorce when the other spouse’s life or death has been unknown for three years or more. On paper, this looks like one of the more straightforward grounds for divorce, but in practice it raises hard questions: what kind of evidence is enough, how do you proceed when the other party cannot be served, and what happens if the missing spouse later returns?

This guide explains what it means for a spouse’s “life or death” to be unknown for three years, how Korean courts apply Article 840(5), and how this ground differs both from other divorce grounds and from a separate declaration of disappearance (실종선고), which is typically used for property matters and requires a longer period.

Civil Act Article 840(5): Spouse Missing for 3+ Years

Article 840 of the Korean Civil Act lists six causes for a judicial divorce. Subparagraph (5) provides that either spouse may seek a divorce:

“If the death or life of the other spouse has been unknown for three years.”

In simple terms, this ground applies when:

You have had no reliable information about whether your spouse is alive or dead; and
That state of uncertainty has continued for at least three years.

This is the statutory basis for a divorce in Korea when a spouse has been missing for 3 years or more, even without proof of fault. Unlike some other grounds, this provision does not require you to prove fault or blame. The law assumes that if your spouse’s life or death is genuinely unknown for three or more years, forcing you to remain legally married is no longer reasonable.

What Does “Life or Death Unknown” Mean?

“Life or death unknown” means more than just “we lost touch” or “we are not speaking.” The key element is objective uncertainty about whether your spouse is still alive.

Courts will typically look at whether:

You have had no direct contact (calls, messages, visits) for a very long period;
Family members, friends, and former colleagues also do not know the spouse’s whereabouts;
Reasonable efforts to locate the spouse (police reports, inquiries with immigration, employers, or relatives) have failed; and
There is no reliable information about the spouse’s survival or death.

The cause of the disappearance does not generally matter. Whether the spouse disappeared due to an accident, voluntarily left without notice, suffered from mental illness and ran away, or vanished for unknown reasons, the focus for Article 840(5) is the fact of continued uncertainty, not who is “at fault” for that situation.

Legal Requirements for This Ground

Three Years of Continuous Uncertainty

To rely on Article 840(5), the spouse’s life or death must have been unknown for three or more consecutive years. The three-year period is usually calculated from the date of the last reliable information about the spouse (for example, the last confirmed sighting, message, or contact).

Short gaps in communication, even if emotionally difficult, do not qualify. The law is aimed at situations where the spouse has effectively disappeared from all normal contact and cannot be located despite diligent efforts.

Spouse Still Missing at the Time of Filing

It is not enough that your spouse was missing for three years sometime in the past. At the time you file the divorce lawsuit, the spouse must still be in a state where their life or death is unknown.

If your spouse reappears or you obtain reliable proof that they are alive before you file, you can no longer rely on Article 840(5). Instead, your case may fall under other grounds such as:

Malicious desertion (Article 840(2)), if your spouse deliberately abandoned the marriage; or
Other serious cause (Article 840(6)), if the overall circumstances make continuing the marriage impossible.

No Fault Requirement

Unlike some grounds that focus on “who is to blame”, this ground is no-fault in structure. The court does not require you to prove that the missing spouse, or anyone else, was negligent or responsible for the disappearance.

Proving That a Spouse Is Missing

In practice, you must persuade the Family Court that your spouse’s life or death is genuinely unknown. Typical evidence includes:

Police records – missing-person reports, investigation results, or confirmations that the spouse has not been located
Statements from relatives and acquaintances – testimony that they have had no contact and do not know the spouse’s whereabouts
Immigration and administrative records – where available, confirmations that there have been no entries/exits, registrations, or other official updates
Other documents – evidence of failed attempts to contact the spouse by letter, email, social media, or through known acquaintances

Because the missing spouse cannot be examined in court, judges often place particular weight on consistent testimony from family members and official trace results from the authorities. With advances in information and communication technology, however, genuine cases that meet this divorce ground have become relatively rare.

Service by Public Notice in Missing-Spouse Cases

If your spouse’s whereabouts are unknown, you usually cannot serve the divorce complaint in the normal way (by personal delivery or mail). Instead, the court will typically allow service by public notice (공시송달).

Service by public notice is a legal procedure used when the opposing party’s location is genuinely unknown. Rather than delivering the documents to the person directly, the court posts the relevant documents on the court’s bulletin board and/or court website, and after a set period, the documents are deemed to have been served by law, even if the other party never actually sees them.

Once service by public notice is deemed effective, the court can proceed with the case even if the missing spouse never appears. This allows you to move forward with the judicial divorce and obtain a judgment, instead of being trapped indefinitely because your spouse cannot be located.

What If the Missing Spouse Later Returns?

A common issue with this divorce ground is what happens if the spouse, believed missing, later reappears after the divorce judgment.

If a divorce based on Article 840(5) becomes final and binding, and the spouse then returns, the prior marriage does not automatically revive. The divorce remains effective.

If the missing spouse believes that the divorce was improper (for example, they were not truly missing, or the facts were misrepresented), their remedy is to challenge the judgment through procedures such as an appeal or a motion for retrial within the time limits allowed by law. They cannot simply claim that the marriage “comes back to life” because they reappeared.

Frequently Asked Questions

Q1. My spouse disappeared, but I know they are still alive somewhere. Can I use this ground?

No. Article 840(5) is specifically about cases where the spouse’s life or death is unknown. If you know they are alive but simply do not know where they live, other grounds, such as malicious desertion (Article 840(2)) or other serious causes (Article 840(6)), may be more appropriate.

Q2. When does the three-year period start?

The three-year period is usually counted from the last reliable confirmation that your spouse was alive (for example, the last phone call, message, or sighting). In cases where a spouse with a mental illness has run away, courts often use the date of disappearance as the starting point.

Q3. Do I have to prove that my spouse’s disappearance was not my fault?

No. Article 840(5) does not require you to prove who is to blame for the disappearance. The cause of the disappearance, or whether someone was negligent, is generally not decisive. The focus is on the objective fact that your spouse’s life or death has been unknown for at least three years and remains unknown at the time of filing.

Q4. How is this divorce ground different from a Declaration of Disappearance?

The divorce ground under Article 840(5) requires three years of life or death being unknown, and its only effect is dissolving the marriage. A Declaration of Disappearance (실종선고) requires five years (or one year in case of a catastrophe) and is a separate judicial process used to legally presume the missing person is dead so their property can be inherited and their legal affairs can be finalized. You do not need a Declaration of Disappearance to get a divorce under Article 840(5).

Navigating Judicial Divorce When a Spouse Is Missing

A divorce in Korea with a missing spouse may look simple on paper, but it involves careful work in practice. For foreigners in Korea, this process is particularly challenging due to language barriers and unfamiliar court practice. Working with an experienced divorce and child custody lawyer in Korea is important to assess whether your situation fits Article 840(5) or another ground, and to navigate service by public notice and the judicial divorce procedure efficiently. If you need tailored advice on your case, you can contact our firm and speak with an English-speaking Korean lawyer.