International Divorce in Korea: Legal Risks and Strategic Considerations for Foreign Nationals

1. International Divorce in Korea: An Increasing Trend and Its Legal Implications

International divorce in Korea has become more common as cross-border marriages continue to increase gradually. According to national statistics, Korea recorded 222,412 marriages in 2024, including 20,759 international marriages. In the same year, there were 91,151 divorces, of which 6,022 involved international couples. Despite this trend, many foreign nationals remain unfamiliar with the Korean divorce system and its international consequences. This article explains the Korean international divorce framework from a practical perspective and highlights the key issues foreign nationals should consider before initiating divorce proceedings in Korea.

2. Understanding Divorce Procedures in Korea

A. Two Procedures: Divorce by Agreement & Judicial Divorce

Korean law provides two fundamentally different divorce procedures: divorce by agreement and judicial divorce. These two procedures differ significantly in structure and international impact.

B. Divorce By Agreement

Article 836-2 of Civil Act states the procedure of divorce by agreement as follows:

In Korea, divorce by agreement is available when both spouses consent to end the marriage. After a statutory cooling-off period, one month if there are no minor children and three months if minor children are involved, the Family Court confirms the parties’ intent to divorce. At that stage, however, the divorce is not yet legally effective. Legal effect arises only when the divorce is registered with the local government office.

Although the procedure is simple, the cooling-off period carries legal significance. If a spouse enters into a romantic relationship with another person during this period, it may constitute infidelity and give rise to liability for emotional distress. The purpose of the cooling-off period is not to declare the marriage irretrievably broken, but to provide time for reflection and, where possible, reconciliation.

The timing of legal effect is a defining feature of Korea’s divorce by agreement system. Unlike judicial divorce, which takes effect upon a final court judgment or court mediation, divorce by agreement becomes effective only through administrative registration. This distinction is especially important in international divorces.

Because Korea’s family relations register applies only to Korean citizens, a divorce by agreement involving a foreign spouse is evidenced solely by an entry in the Korean spouse’s family registry. No court judgment confirming the divorce is issued. As a result, many foreign jurisdictions refuse to recognize Korean divorces by agreement, on the ground that there is no court-issued divorce decree.

While divorce by agreement in Korea is efficient and accessible, it carries inherent cross-border risks. Foreign nationals should never assume that such a divorce will be recognized abroad. Recognition requirements must be carefully reviewed in advance under the law of the relevant foreign jurisdiction. Given the growing number of international divorces, Korean courts should also provide clear advance notice of this issue to foreign parties at the outset of the divorce process.

C. Judicial Divorce

 1. International Recognition

Judicial divorce, by contrast, proceeds through court mediation or formal litigation and concludes with a mediation decree or final court judgment. From an international standpoint, this distinction is critical, as many foreign jurisdictions require a judicial decree in order to recognize a divorce.

2. Fault Based System

Judicial divorce operates within Korea’s largely fault-based divorce system. In principle, the spouse primarily responsible for the breakdown of the marriage is barred from filing for divorce. Article 840 of the Civil Act sets forth the grounds for judicial divorce as follows:

Grounds for judicial divorce include infidelity, interpreted broadly to include emotional affairs, abandonment, domestic violence or severe mistreatment, long-term disappearance, and other serious circumstances making continuation of the marriage impossible. While Korean courts have shown limited openness to the concept of irretrievable breakdown in exceptional cases, fault remains a central element of judicial divorce proceedings.

3. Court Jurisdiction in International Divorce Cases in Korea

Jurisdiction in international divorce cases is governed by Korea’s Act on Private International Law, comprehensively revised in 2022 (hereafter referred to as “2022 Act”. Under the current framework, habitual residence, not nationality, is the primary factor.

The 2022 Act on Private International Law establishes the basic framework for determining international jurisdiction in Korea. Article 2 sets out the general principle as follows:

Korean courts have jurisdiction when a dispute has a substantial connection with Korea. In assessing such a connection, courts are required to consider fairness between the parties, as well as the efficiency and appropriateness of adjudication. This provision functions as a supplementary rule. As Article 2(2) makes clear, it applies only when no specific jurisdictional rule exists under the Act, other domestic laws, or applicable treaties. Accordingly, jurisdiction based solely on a “substantial connection” should be recognized only in exceptional cases and interpreted narrowly.

Significantly, the 2022 Act introduced a special jurisdiction rule for divorce as follows.

Under this provision, Korean courts may hear divorce cases involving a Korean national habitually residing in Korea and a foreign spouse. Habitual residence, rather than nationality, is the primary factor. As a result, Korean courts may also have jurisdiction over divorce proceedings between two foreign nationals of different nationalities if their habitual residence is in Korea.

At the same time, Korean law continues to reflect a nationality-based approach to personal status. From this perspective, nationality may still be relevant, particularly given the role of the family relations register and the importance of accurately recording a Korean national’s legal status. Nevertheless, under the 2022 Act, jurisdiction based on nationality is applied conservatively and is generally recognized only when both spouses are Korean nationals.

An additional practical issue arises from Korea’s family relations register, which applies only to Korean nationals. If both spouses are foreign nationals, their marriage is merely reported to the authorities and is not formally recorded in the register. In one case I handled, the parties, foreign nationals of different nationalities, married in Korea, later left the country, and established residence in different jurisdictions. Although the case did not fall within the special divorce jurisdiction under the 2022 Act, the Korean court nevertheless accepted general jurisdiction and granted the divorce.

As international marriages become more diverse in both nationality and residence, jurisdictional questions in cross-border divorces are growing increasingly complex. This underscores the need for careful legal analysis and, potentially, further refinement of the Act on Private International Law to better reflect the wide range of real-world situations arising in international family disputes.

4. Governing Law in International Divorce Proceedings

The 2022 revision of the Korean Private International Law Act did not introduce any new rules regarding the governing law applicable to divorce. Instead, the determination of the applicable law in international divorce cases continues to be governed by Articles 64 and 66 of the Act. In practice, Korean law is applied in the vast majority of international divorce cases filed before Korean family courts.

Where one spouse is a Korean national and has a habitual residence in Korea, the Act expressly mandates the application of Korean law to the divorce. Likewise, in cases involving a Korean national and a foreign national residing in Korea, or even two foreign nationals whose common habitual residence is Korea, Korean law generally serves as the governing law.

An exception arises when both spouses are foreign nationals sharing the same nationality. In such cases, the law of their common nationality is designated as the applicable law.

A more complex issue emerges in jurisdictions where the law governing divorce varies depending on the parties’ religious affiliation. India can be an example, where different statutes, such as the Hindu Marriage Act, the Indian Christian Marriage Act, and the Special Marriage Act, apply depending on religion.

However, the Act provides no clear guidance on how to determine the applicable law where spouses share the same nationality but belong to different religions. As Korea’s foreign resident population becomes increasingly diverse, questions concerning religion-based family law systems will pose growing challenges in the field of private international law. In international divorce cases, a careful and case-specific analysis of the governing law remains indispensable.

5. Property Division and Financial Issues

With respect to the applicable law, the prevailing view is that the division of property upon divorce is governed not by the provision on divorce, but by the rules on matrimonial property regimes. Article 65 of the 2022 Act applies Article 64 mutatis mutandis, under which the governing law is determined in the following order: (i) the spouses’ common nationality, (ii) their common habitual residence, or (iii) the law of the country with which the spouses are most closely connected.

Under Korean Civil Act, the statutory right to claim division of property upon divorce was introduced in 1990. Either spouse may claim a division of marital property, and where no agreement is reached, the Family Court determines the amount and method of division. Such a claim must be brought within two years from the date of divorce.

A claim for division of property upon divorce serves both to divide property accumulated during the marriage and to provide limited financial support after divorce. Korean law does not recognize a separate system of alimony involving ongoing support payments after divorce.

In practice, the court requires both parties to submit asset lists, may order inquiries into assets if necessary, and determines the division ratio by considering factors such as the duration of the marriage and each spouse’s contributions. Property acquired before marriage, or by inheritance or gift, is generally excluded from division unless the other spouse contributed to its maintenance or appreciation. Where assets are located abroad, Korean courts must rely primarily on voluntary disclosure, as they lack authority to compel foreign institutions. In long-term marriages, such as those lasting approximately 20 years, a full-time homemaker may be awarded up to 50% of the property subject to division, reflecting the presumption of equal contribution.

6. Parental Rights and Obligations in International Divorce

 When a Korean court has international jurisdiction over a divorce, it may also exercise jurisdiction over incidental matters arising from the divorce, including the designation of parental authority, child custody, and claims for child support. Under the 2022 Act, such closely connected claims may be adjudicated together in order to avoid conflicting judgments.

Where a claim concerns child support alone, without an accompanying divorce action, a separate jurisdictional rule applies.

In child support cases, Korean courts generally have jurisdiction based on the habitual residence of the person entitled to support, typically the child. While jurisdiction by appearance may be allowed in certain maintenance-related cases, it is not permitted where the support creditor is a minor. Accordingly, in cases involving child support for minors, jurisdiction cannot be established through the parties’ consent or appearance.

The applicable law governing parental authority and custody is determined primarily by the child’s interests. Where both parents and the child share the same nationality, that law applies; otherwise, the law of the child’s habitual residence governs the parent-child relationship.

Child support obligations are likewise governed, as a general rule, by the law of the child’s habitual residence. If support cannot be obtained under that law, the parties’ common nationality law may apply as a subsidiary rule. Where a divorce is completed or recognized in Korea, support obligations between the former spouses are governed by the law applied to the divorce itself.

In international families, parents often hold different nationalities, and children may acquire dual nationality. As the following Article 2 of Korea’s Nationality Act states, a child automatically acquires Korean nationality if either parent is a Korean national.

Under the 2022 Act, where a person holds dual nationality and one of those nationalities is Korean, Korean law takes precedence in determining the applicable law. The relevant provision states as follows:

Accordingly, even where a child with dual nationality, including Korean nationality, resides outside Korea, if the non-custodial parent obligated to pay child support is a Korean national habitually residing in Korea, Korean law will govern child support. In such cases, the child support is determined based on the parents’ combined income, the child’s age, and other relevant circumstances, with the Family Court referring to the Child Support Guidelines Table as a standardized benchmark.

D. International Litigation Concurrence

In international divorce cases, divorce actions are sometimes filed in two different countries. This occurs as a form of forum shopping, where one party chooses a jurisdiction that is expected to produce a more favorable result.

When divorce proceedings are pending in both Korea and a foreign country, Article 11 of the 2022 Act applies. Under this provision, if certain requirements are met, the Korean court may suspend its proceedings. If the foreign court later issues a final and binding judgment that is eligible for recognition in Korea, the Korean court will dismiss the domestic action. When deciding whether to suspend the case, the Korean court places significant weight on the order in which the lawsuits were filed, specifically, which action was filed first.

As I mentioned above, under Korean law, a spouse at fault’s divorce claim will be dismissed, while the non-fault spouse may claim damages for mental suffering against the at-fault spouse. As a result, an at-fault spouse may attempt to initiate divorce proceedings in a foreign jurisdiction that follows a no-fault system in order to bypass the restrictions of Korean law.

Even in such cases, however, a claim for damages is treated as a separate cause of action under Korean law. Accordingly, the non-fault spouse may still pursue a damages claim before Korean courts, regardless of whether the at-fault spouse first filed for divorce abroad.

Where the non-fault spouse files both a divorce action and a damages claim in Korea, but the at-fault spouse obtains a final divorce judgment from a foreign court, the Korean court is likely to dismiss the divorce claim due to the prior foreign judgment, while continuing to adjudicate the damages claim independently.

E. Public Policy

Under the Act on Private International Law, even where a foreign law is designated as the governing law, its application may be refused if it would produce a result manifestly incompatible with Korea’s fundamental legal principles, core values, or basic notions of justice. This limiting role is known as the defensive function of the public policy clause. Article 23 of the 2022 Act codifies this principle by providing that foreign law shall not be applied where it would violate the public order of the Republic of Korea, as set forth below.

The application of the public policy exception in international divorce cases remains exceedingly rare in Korean judicial practice. One of the few notable instances involved the application of Philippine law, which categorically prohibits divorce. In that case, the Korean court refused to apply Philippine law on the ground that an absolute ban on divorce was incompatible with Korean public policy, which broadly recognizes both consensual divorce and judicial divorce. As a result, the Korean family court substituted Korean law as the governing law.

A potential area in which public policy considerations may become more prominent concerns same-sex marriage. Because same-sex marriage is not legally recognized under Korean law, complex issues may arise when a foreign same-sex couple who lawfully married in a jurisdiction that permits same-sex marriage seeks a divorce before a Korean court after entering Korea. A divorce action necessarily presupposes the legal validity of the underlying marriage. Accordingly, for a Korean court to adjudicate such a petition, it would first need to recognize the same-sex marriage as legally valid.

Whether such recognition would be denied under Article 23 of the 2022 Private International Law Act on the basis that it contravenes Korean public policy remains an unresolved question. As cross-border mobility and diverse family structures continue to increase, the scope and limits of the public policy clause in international family law are likely to become an area of heightened legal scrutiny.

F. Conclusion

International marriages and divorces are steadily increasing in Korea, yet the structure and implications of Korea’s divorce system remain insufficiently understood outside the country. International divorce involves far more than the application of Korea’s domestic divorce law. It raises a range of complex legal issues, including international jurisdiction, the determination of the governing law, and the cross-border recognition of marital status. These issues can have long-term legal consequences that extend well beyond the divorce proceedings themselves. For this reason, international divorce should be approached with careful legal planning and the guidance of an experienced legal professional who is familiar with both Korean law and private international law considerations.