Can an At-Fault Spouse Claim Divorce Property Division in Korea?
Bo-ram Kim Managing Partner
Request a consultation1. Can an At-Fault Spouse Claim Divorce Property Division in Korea?
Marital conflict has reached its peak, and talk of divorce has emerged.
"Let's just divide what we have and get divorced."
Then, the spouse shouts as if he/she has been waiting:
"You're the at-fault spouse! What right do you have to talk about property division? Didn't you know that an at-fault spouse leaves with nothing in Korea?“
‘Because of my wrongdoing during the marriage, do I really have to get divorced without receiving any division of the assets accumulated during the marriage?’
Let us, Haeon, Provide the Correct Answer
“No. In Korea, even an at-fault spouse can claim property division upon divorce.”
This is because the property division system is not intended to assign blame for the marital breakdown (fault/유책성).
Instead, it has the character of 'liquidation' (청산), fairly dividing the marital property formed during the marriage according to each party's contribution (기여도) in Korea.
In other words, separate from causing the grounds for divorce, if a spouse contributed to the formation of assets, they are recognized as having the right to receive a corresponding share.
If there are properties acquired through the cooperation of the husband and wife during the marriage, even the spouse responsible for the breakdown of the marital relationship can claim division of property.
2. Then, will the property division ratio be disadvantageous due to the grounds for fault (my wrongdoing)?
No. In the Republic of Korea, the grounds for fault only affect whether a divorce can be granted when the other party does not want a divorce, and the amount of alimony/damages(위자료).
It does not affect the property division ratio. What affects the property division ratio is "contribution" (기여도).
However, case law sometimes supplementarily includes an alimony-like element in property division for a spouse who may face economic hardship after the divorce.
3. However, grounds for fault related to assets can affect property division.
① Waste or Concealment of Assets (Dissipation)
- Acts where the at-fault spouse gifts a large sum of money to the affair partner.
- Cases where marital property was arbitrarily disposed of or consumed, reducing assets due to gambling, etc.
The court may impose a substantial disadvantage by considering the dissipated assets as still existing and deducting them from the at-fault spouse's share, or by adjusting the division ratio of the remaining assets.
② Debts Related to Misconduct
Debts incurred by the at-fault spouse unrelated to the joint marital life, such as for personal luxury, gambling, or illegal activities, are generally not recognized as joint marital debts. They remain the personal debts of the at-fault spouse and are excluded from the property division (effectively reducing the net amount of property division as the debt is not shared).
4. Distinction Between Divorce Property Division and Alimony/Damages (위자료) in Korea
① Property Division (재산분할)
Dividing assets based on each party's contribution to the formation of the joint marital property. Claimable by both parties regardless of fault.
② Alimony/Damages (위자료)
Compensation for emotional distress suffered due to the breakdown of the marriage caused by the other spouse's wrongful act (fault). Only the spouse not at fault (victim) can claim this against the at-fault spouse (perpetrator).
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