Part III: Causes for Judicial Divorce and Infidelity
In this third part of the series, “How to Get an International Divorce in Korea”, I’m talking about the grounds for judicial divorce in Korea. One spouse may file a judicial divorce in case the other spouse has faults at divorce in Korea. If a party at fault for divorce files a judicial divorce, the family court will not grant the divorce. I’ll explain the grounds for judicial divorce based on Korean Civil Act, and the main focus will be on infidelity as a cause of judicial divorce.
Article 840 of Korean Civil Act states that causes for judicial divorce are the other spouse’s infidelity, the other spouse’s malicious abandonment, maltreatment by the other spouse or his or her lineal ascendants, the other spouse’s maltreatment to one spouse’s lineal ascendant, the other spouse’s unknown death or life for three years, and any other serious cause for making it difficult to continue the marriage.
Among the causes for judicial divorce, infidelity will be mainly explained since it has been one of the most common reasons for divorce in Korea recently. Above all, the meaning of infidelity shall be clarified. Husband and wife have duties of fidelity and infidelity means violation of duty of fidelity. According to the court precedents, the notion of infidelity is broader than that of adultery. Infidelity as a cause of divorce does not only mean having intercourse with another man or woman. Specifically, if a husband frequently exchanges romantic messages with another woman, that can be considered as infidelity. Also, a family court concluded that a wife who had cohabited with another man even without having a physical relationship violated the duty of fidelity.
As for a judicial divorce due to the other party’s infidelity, there are several issues you should keep in mind. If you are considering filing a judicial divorce, you should not express your intent to forgive his or her infidelities. Also, you have to remember when you found out your spouse violated the duty of fidelity. Article 841 of Korean Civil Act states;
“With respect to infidelity as a cause of divorce, 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”. Therefore, you should not forget to apply for a judicial divorce within the time limit
Also, I’d like to mention what you need to consider when you collect the evidence on infidelity. If you have a hunch that your spouse has a romantic relationship with another man or woman and want to secure a proof for that, you should be careful not to break privacy laws. If you unlock your spouse’s mobile phone or other mobile devices without his or her consent, it may constitute a crime. The evidence shall be obtained legally in order to avoid a punishment. I know that it will be very difficult. So, I’d recommend you to consult a lawyer when you try to collect the evidence to prove your spouse’s infidelity.
If your spouse violates duty of fidelity, you may claim compensation for your mental distress. The awarded amount will be around 10 million KRW to 50 million KRW. These days, it is very unusual that the family court grants more than 30 million KRW for compensation for infidelity. If the other spouse has continued an extramarital relationship for a long time, the amount of compensation will be higher than 30 million KRW. But the compensation might not be sufficient to compensate the spouse’s distress.
There is a recent court case that the court ruled that a husband shall pay his wife 100 million KRW for his infidelity. That is the case of Mr. Taewon Choi, one of Chaebol in Korea. In the first instance of his divorce trial, the family court granted 100 million KRW as compensation for his extramarital relationship. He has an affair with a woman and a daughter was born between him and her in 2010. Both parties appealed and the case is in the proceedings of the second instance.
It is also possible to claim financial compensation against the person who has an affair with your spouse. A civil suit can be filed against only the person without applying for a divorce, or the claim can be joined in a divorce suit.
Today, I have explained the causes for judicial divorce in Korea and several legal issues with regard to infidelity has been mainly discussed. If you have further inquiries, please contact me via email. Thank you!