In Korea, there are two types of divorce; divorce by agreement and judicial divorce. If both parties agree on divorce, husband and wife may get divorce by agreement based on Article 834 of Civil Act and procedures will not be so complicated. However, when one of the parties does not want to divorce or there are disagreements between the parties on causes for divorce or asset division or parental authority or child custody or child support, one of the party should file judicial divorce and related claims to the Family Court.
For judicial divorce, the key issues are whether the parties have causes for divorce since the Article 840 of Civil Act prescribes the reasons for filing for judiciary divorce as follows;
- If the other spouse has committed an act of unchastity;
- If one spouse has been maliciously deserted by the other spouse;
- If one spouse has been extremely maltreated by the other spouse or his or her lineal ascendants;
- If one spouse’s lineal ascendant has been extremely maltreated by the other spouse;
- If the death or life of the other spouse has been unknown for three years;
- If there exists any other serious cause for making it difficult to continue the marriage.
You might want to know what “an act of unchastity” stated in the first paragraph means. According to the court precedents, it doesn’t only mean “adultery” and even if the husband or the wife didn’t have extramarital affairs, a claim for act of unchastity may be accepted. For instance, if husband contacts with a woman privately too often, the husband violates duty of chastity. Also, if wife cohabits with a man even without having a physical relationship, the wife violates fidelity duty her husband.
When filing for judicial divorce for the spouse’s unchastity, the following article of Civil Act should be noted.
Article 841 (Extinction of Right to Apply for Divorce due to Unchastity)
With respect to the cause mentioned in subparagraph 1 of Article 840, if the spouse has given a previous consent or an ex post facto tolerance to the other party, or if six months have passed since the spouse was aware of such act of unchastity of the other, or if two years have passed since the happening of such event, the spouse may not apply to the court for a divorce.
Also, the one who has causes for divorce shall not claim for divorce, which is a firm ground of court precedents in Korea. However, in 2015, Supreme Court suggested several exceptional possibilities for Family Court to grant at-fault spouse’s divorce claim considering both parties’ intention to the divorce, the defendant’s financial and emotional status in case divorce is granted, the current situation after the breakdown of the marriage, and their age of the children.
As you might know, in order to argue the spouse’s causes for divorce in the proceedings of judicial divorce, it is necessary to submit evidence to prove them. Voice recordings of conversation you joined, messages would be helpful. Yet, it is illegal to record for a non-participant to record the conversation without the parties. Additionally, you should not violate Privacy related laws when collecting the evidence.
When arguing the spouse’s causes for divorce, you may claim the compensation for your mental or physical stress. Roughly stated, Family Courts usually grant 5 million KRW to 50 million KRW for compensation for your damages caused by the spouse’s causes for divorce.
If you are an F6 visa holder and your Korean spouse has causes for divorce, you may extend your visa after divorce proving his or her causes for divorce and receiving the court decision which grants the compensation for your mental or physical damages accordingly.