Can the At-Fault Spouse Divorce in Korea?

by Kang & Shin | 2026. 01. 23 | Divorce

In many jurisdictions, if a marriage is broken, the court grants a divorce regardless of who is to blame. In South Korea, the starting point is the opposite. In Korea, a judicial divorce (재판상 이혼) is not simply about whether a marriage has ended emotionally. Courts apply a fault-based principle (유책주의) as a core rule: the spouse who is primarily responsible for the breakdown of the marriage (the “at-fault spouse”) generally ordinarily cannot seek a judicial divorce. However, the rule is not absolute. recent landmark rulings have significantly widened the “legal cracks” through which an at-fault spouse might find relief.

The General Rule: Korea’s Fault-Based Principle

Korean courts have repeatedly held, in substance, that a spouse who is solely or primarily responsible for the marital breakdown cannot claim divorce based on that breakdown. The Korean Supreme Court reaffirmed this principle in a major 2015 en banc decision (Supreme Court of Korea, 2013Meu568). The court provided several reasons for maintaining this stance:

Preventing “Eviction Divorces”: The law aims to prevent an at-fault spouse from unilaterally discarding a vulnerable spouse who may lack economic independence.
The Existence of Agreement Divorce: Unlike many “no-fault” countries, Korea has a robust system for Divorce by Agreement. If the at-fault spouse can convince the other party to consent, usually through a sincere apology and significant financial compensation, they can divorce without a trial.
Lack of Spousal Support Protections: Korea currently lacks strong post-divorce maintenance (spousal support) laws that exist in other countries, making the “at-fault” shield necessary to protect the non-responsible party.

Who Is Actually “At Fault”? The Court’s Comparative-Fault Analysis

A key practical point is that the analysis is not always binary (“fault” vs. “no fault”). Korean courts emphasize that marital breakdowns are often complex and not easily pinned on only one spouse.

The comparative-fault approach (“whose fault is heavier”)

Case law has expressed the idea that if the marriage is irretrievably broken, divorce should be granted unless the plaintiff’s responsibility is heavier than the defendant’s. In other words, even if the plaintiff is not “perfect,” the divorce claim should not be rejected merely because the defendant can point to some misconduct by the plaintiff, the court must compare responsibility.

Exceptions Even for an At-Fault Spouse

Even when the plaintiff is genuinely the at-fault spouse, Korean courts recognize limited exceptions.

Exception 1: Lack of Real Intent to Continue the Marriage

The classic formulation is that divorce may be allowed where the other spouse also objectively lacks any intent to continue the marriage, but refuses only from anger, revenge, or a punitive motive.
Courts have explained that if divorce is denied in that scenario, the marriage can be misused as a tool to satisfy “private revenge,” rather than to preserve a real family relationship.

Caution: “Spite” Is Hard to Prove

Courts also warn that you cannot assume the other spouse is refusing “out of spite” based on thin facts. Simply pointing to separation or conflict is not enough; the analysis is fact-intensive.

Exception 2: “Fading Fault” (Neutralization of Responsibility)

Commentary and case law also discuss that exceptions may be considered where, for example:

Protection and consideration for the other spouse and children has been provided to a degree that offsets the plaintiff’s fault, and/or
With the passage of time, the at-fault spouse’s fault and the other spouse’s suffering have substantially weakened, such that strictly weighing fault becomes practically meaningless.

Long Separation Helps But Is Not Determinative

You will see cases where divorce was denied even after long separation if the breakdown was caused by the plaintiff’s serious fault and the defendant still appeared to want to maintain the marriage.

At the same time, courts may be more willing to reconsider blanket denial in certain fact patterns where the parties’ independent lives have become firmly established and the real-life substance of the marriage has effectively disappeared.

What Courts Consider in Exception Analysis

When deciding whether an at-fault spouse’s divorce claim should be exceptionally allowed, the analysis is multi-factor. Factors commonly stated include:

Nature and degree of the at-fault spouse’s responsibility
The other spouse’s intent to continue the marriage (and feelings toward the at-fault spouse)
The parties’ age
Length of marriage and the concrete marital life history
Length of separation
Life arrangements formed after separation
Whether circumstances changed after the breakdown
The other spouse’s mental, social, and economic condition and level of post-divorce security
Welfare of minor children (custody, education, well-being)
Any other relevant marital circumstances

This is why outcomes can differ sharply even when two cases “sound similar” at a high level.

Practical Strategy: How These Cases Are Actually Won (or Lost)

1) Prove “Irretrievable Breakdown” with Concrete Facts

Even in at-fault spouse cases, courts focus heavily on whether the marriage is objectively beyond restoration, not just emotionally unpleasant.

Useful evidence often includes:

Proof of long-term separation and independent lives (residence records, leases, utility bills)
Communication records showing no meaningful marital relationship
Evidence of fixed post-separation life arrangements (work, childcare, new living structure)

2) If You Are At Fault, Argue “Fairness and Protection,” Not Excuses

Where the plaintiff bears serious fault, courts are sensitive to whether granting divorce would unfairly harm the other spouse. Arguments are stronger when supported by:

Documented steps to ensure the other spouse’s post-divorce stability
Child welfare planning (if minor children exist)
Concrete facts showing the other spouse is not seeking genuine marital restoration (difficult and fact-heavy)

3) Structure Your Pleadings Around the Turning Point

Because “responsibility weighing” and “exception analysis” are fact-driven, pleadings often succeed when they clearly show:

the turning point of breakdown,
how the marriage became non-restorable, and
how post-breakdown life became fixed.

Frequently Asked Questions

Q1. Is it “impossible” for an at-fault spouse to divorce in Korea?

No. The default rule is strict, but exceptions exist, and courts also apply comparative responsibility rather than a simplistic “one mistake bars divorce forever” approach.

Q2. If the other spouse opposes divorce, does that automatically block the claim?

Not automatically. The other spouse’s intent matters, but courts look at the objective reality of whether the marital joint life can be restored and whether refusal is tied to genuine marital intent or a punitive motive (note that his is not easy to to prove).

Q3. Does a long separation mean the at-fault spouse can divorce?

Not automatically. Long separation is important but not conclusive. There are cases denying divorce despite long separation where the plaintiff’s fault was central and the defendant still showed marital intent.

Q4. What is the single most important theme in these cases?

Whose fault is heavier, and, if the plaintiff is at fault, whether denying divorce would be unjust in light of the parties’ present reality and the need to protect the other spouse and children.

Navigating the Path Forward

At-fault spouse divorce cases are among the most difficult areas in Korean divorce litigation because they mix strict doctrine with a fact-specific fairness evaluation. If you are considering divorce in Korea and want a tailored assessment and evidence strategy, it can be very helpful to speak with a divorce lawyer in Korea for foreigners.