Is it illegal to have an affair with a married person even if the marriage has been already broken?

In South Korea, there was an Article of Criminal Act that punished adultery until 2013. Now, adultery is not a crime, but is still considered a tortious act to have a romatic relationship with a married person. Accrding to Korean Civil Act, having an affair with a married person constitutes a tort as it prevents the maintenance of conjugal life and inflicts a mantal pain on his or her spouse. Thus, it is possible to file a civil suit against a person having an affair with your spouse to obtain compensation for damages due to the affair.

A defendant having a relationship with a married person might defend himself or herself by arguing that the marriage has been already broken, so the relationship has no impact on the marriage at all. The Supreme Court states that if a couple has not yet been divorced, but their conjugal life has been substantially destroyed and has reached a state of irretrievable breakdown, even if a third party engages in sexual behavior with one of the spouses, it shall not be considered to be an act that infringes on or interferes with the maintenance of the marriage, nor can it be said to cause damage that infringes on the spouse’s right to conjugal life, and therefore it is difficult to conclude that a tort has been committed. The defendant shall have burden of proof that the marriage has been already broken and he or she has not have infringe on the marriage.

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