The Complete Guide to Divorce Litigation in Korea
For those of you struggling alone, Haeon, the law office specialized in divorce cases, will compile and inform you of everything you need to know before getting a divorce in Korea.
Going through a divorce in a foreign country, away from one's familiar surroundings and support systems, can undoubtedly pose additional challenges and complexities.
The language barrier, cultural differences, and lack of familiarity with the local legal system can make the divorce process overwhelming and daunting for foreigners residing in Korea.
The feeling of wanting to escape this reality that torments and tires you – we understands it better than anyone else.
But the law does not protect those who sleep on their rights.
For most people experiencing divorce in Korea for the first time, the following content may seem overwhelming. However, if you patiently persevere and carefully understand it, it will become your sword and shield in overcoming your current struggles.
If you have the will and determination to claim your legitimate rights, we promises to be your most reliable supporter.
Table of Contents
1. Divorce Litigation in Korea
2. Divorce Litigation Procedure
3. Division of Property in Divorce
4. Compensatory Money
5. Parental Rights, Visitation Rights
6. Child Support
1. Divorce Litigation in Korea
1) When Divorce Litigation is Necessary
If you have decided to divorce but ① your spouse refuses the divorce, or ② you cannot reach an agreement on various issues that must be decided during the divorce, such as division of property, compensatory money, and parental rights, you must proceed with the divorce through litigation in Korea.
2) Six Legal Grounds for Divorce
To obtain a divorce through a trial, the cause of the divorce must fall under the legal grounds for divorce stipulated in [Civil Act Article 840]. The legal grounds for divorce become an issue mainly when one spouse does not want the divorce, leading to an intense dispute over whether the grounds apply and whether a divorce is possible.
[Six Legal Grounds for Divorce in Korea]
① In case of an adulterous act committed by one spouse
② In case of malicious desertion by one spouse
③ In case of maltreatment or grievous insult from one spouse or their lineal ascendants, rendering the continuation of marriage extremely difficult
④ In case of maltreatment or grievous insult from the lineal ascendants of one spouse, rendering the continuation of marriage extremely difficult
⑤ In case the whereabouts of one spouse remain unknown for three years or more
⑥ In case of any other grave cause making the continuation of marriage impossible
Cases of Legal Grounds for Divorce in Korea
3) Offending Spouse
On the other hand, a spouse whose actions fall under the legal grounds for divorce and is responsible for the breakdown of the marriage is called the "offending spouse". If the other spouse does not want a divorce, the court will not grant the offending spouse's request for divorce. If the other spouse wants a divorce, the offending spouse must pay compensatory money for causing the breakdown of the marriage.
This is a remedial measure under the Korean Civil Act to protect the victim who suffers a divorce despite being faultless in the marriage breakdown.
2. Divorce Litigation Procedure in Korea
Divorce litigation begins when one spouse files a complaint through a divorce attorney, with the filing spouse becoming the plaintiff and the other spouse becoming the defendant.
1) Family Court Investigation Procedure
Prior to the divorce litigation procedure, a family court investigator conducts a preliminary investigation called the Family Court Investigation Procedure.
This procedure summarizes the facts leading up to the divorce, and the investigator also asks the couple if they have any intention of reconciling and finalizing the divorce through mediation.
This system was introduced to overcome the practical limitation of judges being unable to hear the facts of numerous divorce cases in court. However, this procedure can sometimes lead to prolonged litigation.
2) Mediation Procedure
Before entering into divorce litigation, the court sets a mediation date and attempts to reach an agreement between the parties through the Mediation Procedure.
If mediation is successful, there is no need for lengthy litigation, and since the outcome is based on the parties' agreement, the rate of appeal is low.
Additionally, in Korea, the principle of mediation precedence is adopted in divorce cases, making the mediation procedure mandatory.
3) Divorce Litigation
If mediation fails, the parties finally enter the full divorce litigation procedure, where they strive to obtain the best outcome by proving their claims to the court. The duration from filing to the final judgment can range from six months to over two years.
3. Division of Property in Divorce
1) Meaning of Division of Property in Divorce
Division of property in divorce refers to the division of assets jointly accumulated by the couple during their marriage. Therefore, assets owned by either spouse before the marriage, known as "separate property", are not subject to division. However, in practice, separate property may be included in the division, considering the spouse's role in maintaining and managing the property during the marriage, with the division ratio adjusted based on their contribution.
2) How to Prevail in Property Division in Korea
The ultimate goal is to obtain the maximum share of the couple's joint assets or minimize the share allocated to the other spouse. To achieve this, you must work closely with an experienced attorney to uncover any hidden assets of your spouse through asset disclosure requests and prove your contribution to asset formation to secure a higher division ratio.
3) Prenuptial Agreement or Property Waiver
The right to claim division of property in divorce arises only when the divorce becomes effective. Therefore, a "property waiver" signed during the marriage is generally invalid in Korea. For the same reason, a prenuptial agreement has no effect on the division of property in divorce, although it may be enforceable against third parties.
※ However, a property waiver can be considered as evidence of the primary cause leading to the breakdown of the marriage in divorce litigation.
Legal Basis for the Invalidity of Property Waivers in Korea
4) Assets Subject to Division
In a divorce, the division of property includes net assets jointly accumulated by the couple during their marriage through cooperation. This includes the sum of their positive assets (assets) minus negative assets (debts).
① Assets
Joint assets accumulated through the couple's cooperation include real estate such as apartments, stocks, loans extended to others, as well as future income sources like unpaid retirement allowances and pensions of either spouse. While separate property owned by one spouse before the marriage is generally excluded from division as “separate property”, in practice, if the marriage duration is long (the interpretation of separate property has been narrowing, and in some cases, it may be denied even for marriages lasting around two years), separate property may be included, with the division ratio adjusted based on the contribution.
If proven with evidence, assets held under nominal ownership by a third party can also be included in the division of property.
※ Example: An apartment registered under the name of the husband's mother but purchased primarily with funds provided by the husband.
② Debts
The Supreme Court has ruled that debts incurred while forming joint marital assets should be deducted as negative assets in the division of property (Supreme Court Decision 2008므2492). In practice, unless there are special reasons (such as the cash inflow from the debt being consumed elsewhere and not contributing to the joint assets), most debts are included in the property division.
※ What if the couple is in net debt?
If debts were incurred during the marriage for the formation or maintenance of joint assets, they are subject to division of property. Even if only debts remain, they must still be divided.
However, considerations such as ensuring the livelihood of the parties after the divorce and their financial capacity must also be taken into account. Therefore, the court comprehensively considers factors such as the cause, usage, amount of debt, the couple's economic activities during the marriage, and their ability to support themselves, to determine the division ratio and method.
5) Finding Your Spouse's Hidden Assets
In South Korea, real estate is a significant component of household assets. While it may not be difficult to identify your spouse's major assets subject to division, such as real estate, accurately determining the value of intentionally concealed assets like cash, deposits, insurance, and stocks can be challenging.
In a consensual divorce, you have to rely on your spouse's statement, but in a litigated divorce, you can obtain objective data through ① asset disclosure requests and ② asset search requests.
Therefore, if you suspect your spouse is trying to hide assets during the divorce process, it is crucial to proceed through litigation to verify the objective asset list and divide the property accordingly.
If Your Spouse Is Trying to Hide Assets
6) Property Division Ratio – Contribution
In a consensual divorce, the parties determine the property division ratio themselves. However, in a litigated divorce, the court decides the division ratio based on the assessed contribution of each spouse.
Contribution refers to the extent to which each spouse contributed to the formation of the couple's joint assets, encompassing not only economic contributions but also housework, child-rearing, financial management, and other factors.
① Consideration of Separate Property
As mentioned earlier, if the marriage duration exceeds a certain length, the court includes separate property owned before the marriage in the division, considering the spouse's contribution to maintaining and managing the property.
[Excerpt from Supreme Court Precedent (Supreme Court Decision 2008스111 dated June 9, 2009)]
Even if one spouse inherited property or real estate was formed based on inherited property that has already been disposed of, if the other spouse directly or indirectly contributed to the acquisition and maintenance of that property through housework, etc., it becomes subject to property division. The same applies to property gifted to one spouse by a third party.
However, if there is high-value separate property such as a building, the court will reflect the rights to the separate property in the contribution and determine a higher division ratio for the spouse who originally owned the separate property.
② Housework, Child-rearing, etc. – Maintenance and Management of Joint Assets
Unless there are special circumstances, the Korean family court recognizes the efforts of a full-time housewife who has primarily taken care of household chores and child-rearing in maintaining the household. The longer the marriage duration, the higher the contribution is generally considered. If a spouse has been a full-time housewife for an extended period exceeding 20 years, the contribution may be recognized up to 50%.
7) Property Division Taxes in Korea
In South Korea, the division of property in divorce involves distributing the assets accumulated together during the marriage into each spouse's name, and it is not subject to transfer or gift taxes associated with the transfer of property. However, acquisition and registration taxes for real estate and other properties requiring registration are imposed at a special reduced rate.
4. Compensatory Money
Compensatory money is paid by the offending spouse to the other spouse as compensation for the mental distress caused by the breakdown of the marriage relationship and the divorce.
Amount of Compensatory Money?
Since each party in a divorce litigation has unique family circumstances, it is impossible to uniformly predetermine the amount of compensatory money. However, when objective evidence substantiating the claimed damages is provided, rather than mere claims of harm, a higher amount of compensatory money is recognized.
Contrary to the general societal perception, compensatory money is often awarded in the range of 20 to 30 million Korean Won. However, higher amounts may be awarded depending on the severity of the grounds for marital breakdown and the duration of the failed marriage.
In Korean divorce litigation, the responsibility for the breakdown of the marriage is considered only when determining whether a divorce should be granted and the amount of compensatory money, but it is not considered in the division of property.
5. Parental Rights, Visitation Rights
In Korean divorce litigation, parental rights refer to the right to raise a child, and "parental authority" refers to the rights and obligations related to the personal and property matters of a minor child. While joint parental authority is possible, generally, the court grants parental rights and authority to the parent who will raise the child for the child's well-being, while the non-custodial parent is granted visitation rights.
Visitation rights refer to the right to contact or meet the child after divorce.
If the other parent prevents you from meeting the child after the divorce, you can request an enforcement order through the family court. Failure to comply with the family court's order can result in a fine of up to 10 million Korean Won, and you may also seek custody of the child through litigation.
6. Child Support
1) Obligation to Pay Child Support
In Korea, a parent's obligation to support their child arises at the child's birth and does not cease due to divorce. Therefore, the non-custodial parent has an obligation to pay child support until the child becomes a legal adult.
However, if the divorce is finalized through "mediation" rather than a court judgment, the couple can agree to continue paying a certain amount of child support even after the child becomes an adult (e.g., supporting the child's college tuition).
2) Determination of Child Support
In Korean divorce litigation, a child's support is determined by comprehensively considering various factors, including the parents' combined income. The child support calculation guidelines published every 2-3 years by the Seoul Family Court (the latest guidelines were published in 2021) serve as a reference.
However, since the child support calculation guidelines are derived solely based on the parents' current income, they are not uniformly applied. The child support amount is determined by considering the parents' overall financial situation, place of residence, number of children, and other factors.
7. Which divorce attorney in Korea should you consult with?
The attorney that other lawyers trust to handle their own divorce cases.
The attorney that opposing lawyers refer their own familys to.
This is what Law Office Haeon is.
1) The Lawyers' Family Law attorney – Haeon
The fact that lawyers in Korea entrust their own or their family’s cases to Haeon is proof of our expertise. Even lawyers with no prior personal connection often come to us based on our established reputation within the legal community. We are the lawyers' family law attorney.
2) All Our Attorneys are Seasoned Professionals
Haeon's family law team consists entirely of senior attorneys who passed the bar exam between 2010-2012 and have years of experience practicing family law. This ensures our attorneys have the necessary expertise.
3) In-House CPA for Sophisticated Asset Valuation
Properly valuing a spouse's business interests is crucial in property division cases. However, only a handful of major law offices in Korea have in-house CPAs specializing in business valuation and forensic accounting - services that can cost millions or even tens of millions of won when retained separately.
Haeon has a consulting CPA who previously worked at a top-3 conglomerate of Korea and KPMG Accounting Firm. Our CPA partner provides sophisticated valuation, fraud investigation and transaction advisory services at a reasonable cost to protect our clients' interests.
4) English Interpreter Ready
At Haeon, we have an in-house interpreter who previously served as an English interpreter for the ROK Army and U.S. Army, working alongside them on joint operations. Even if your Korean language skills are limited, making it difficult to fully explain your situation, our interpreter ensures you can communicate seamlessly during your consultation. We bridge the language gap so you can get the legal guidance you need.
In times of crisis, everyone claims to be the best. But the truly superior attorney proves it through results. Haeon has the sophisticated expertise to deliver what you need.
