Let’s assume a situation where a husband has an affair with someone and he wants to get divorced. Can it happen legally under Korea divorce law?
Well, it may be very hard for him to get divorced unless the wife agrees to it. Someone may argue that as long as the marriage cannot be sustained because of husband’s act of unchastity, it is meaningless and no good for anyone to force the continuance of the marriage.
Well that allegation sounds plausible, but may be rejected by Korean court.
Korean law(Civil Act) allows judicial divorce in the following cases(Article 840 of Civil Code):
1. If the other spouse has committed an act of unchastity.
2. If one spouse has been maliciously deserted by the other spouse
3. If one spouse has been extremely maltreated by the other spouse or his or her linear ascendants
4. If one spouse’s linear ascendants has been extremely maltreated by the other spouse
5. If the death or life of the other spouse has been unknown for 3 years; or
6. If there exists any other serious cause for making it difficult to continue the marriage.
One thing should be noted is that, in general, the spouse who is responsible for the breaking of marriage can NOT apply to the court for a divorce. That means, even though the fact that a husband cheated on his wife does come under article 840 of Civil Code, but who can ask for a divorce to the court is only the wife, not the husband who is responsible for breaking marriage. That has been repeatedly affirmed by numerous Supreme Court’s rulings.
However, in a rare case where the wife is irresponsible for the breaking of marriage also wants a divorce but does not accept the other spouse’s demand for a divorce by reason of mere obstinacy or revenge, the court would exceptionally accepts the responsible spouse’s application for a divorce.
Let’s get back to the question. As the husband has committed an act of unchastity, the husband can not apply for a divorce to the court unless the wife also wants divorce explicitly or impliedly.
© 2008 Wonil Chung, a Korean Divorce Lawyer/Chung & Partners, a Korean Family Law Firm. All rights reserved. Some copyrights, photos, icons, trademarks, trade dress, or other commercial symbols that appear on this post are the property of the respective owners.
September 4, 2008 at 9:50 am |
Mr. Chung: Do the adultery rules you mention also apply to a foreigner who is attempting to divorce his/her Korean spouse? Assuming the court would apply the same rules as in Article 840, would the adultery have to be proven to the court, for example by pictures or a third party testimony? Or is the accusation (heresay) by the respondent enough for the court to NOT grant a divorce under Article 840? I am unclear about this. Thank you for your reply.
September 8, 2008 at 3:38 pm |
Dear Mark,
I sent an email to you with the answers to your questions. Thank you.
October 22, 2008 at 3:00 pm |
Mr. Chungwi:
Sir, I have the same question as Mark. Could you reply to me as well. I want to divorce my wife and marry someone else. What advice do you have for me. I currently live and work with her. I am not a bad person, in fact we have be living in separate rooms for quite awhile now and without looking met someone wonderful. In Korea this is a dilemna. Thank you for your reply
October 24, 2008 at 8:02 am |
Dear Craig, please check your email account. I sent an email to you with some answers. Thank you.
July 3, 2009 at 12:47 am |
Mr. Chungwi,
Is this law still in force or it has been amended in 2009? Are you expecting to see some changes in this area of the family law any time soon.
Thank you and kind regards
Nancy
July 6, 2009 at 6:32 pm |
Dear Nancy, the relevant clauses of the Civil Act is still the same, not amended yet. Thanks, Wonil Chung
July 18, 2009 at 6:13 am |
hello, Under Korean Law, will a divorce be granted if the wife requests it based on pictures and actual written evidence of sexual misconduct, including x rated pictures and correspondence between a man divorced already 4 times and woman married only once?
July 18, 2009 at 3:47 pm |
Yes, It will.
August 7, 2009 at 2:45 am |
Can two foreigners, an American and a Korean-born American citizen, who were married in Korea, get divorced in Korea?
August 8, 2009 at 12:04 am |
Yes they can, so long as (a) they both live in Korea or (b) the opposing party who does not live in Korea answers to the divorce lawsuit filed in a Korean family court. However, please consult with a U.S. lawyer regarding a divorce judgment in Korea shall be effective in the states. For more information, especially regarding several ways to get divorced in Korea, please email me at any time.
October 13, 2009 at 1:24 am |
Thank you so much for the information..I read the earlier post. And I am so gratefulfor the fast reply. And yes, It helped me a lot. Because of your post, I am confident that I haven’t done aything to worry about this. More power to you..Thanks