Blog, Divorce

In a nutshell, when you marry a Korean citizen, you get an F-6-1(also known as F-6-A) visa. When you are divorced but have a child to raise who has Korean citizenship, you get an F-6-2(F-6-B) visa. The third type of visa, F-6-3(F-6-C), is quite unique. It is issued when you are divorced but have no child to raise, but still, the divorce is your spouse’s fault. 

Married to a Korean citizen	F-6-1
Having a Korean child – Divorced	F-6-2
No Korean child – Divorced (Your spouse’s fault)	F-6-3

In this article, we are going to discuss the third one, the F-6-3 visa in detail. 

The Legislative Purpose of The F-6-3 Visa

Why does Korean law have this type of visa? The legislative purpose of this clause is to provide a humanitarian stay permit to foster your right to divorce. For instance, you may be already living in South Korea, and having your own job here, but your spouse commits domestic violence against you, or having an affair with another person. You do not think that you can sustain this life with your spouse, and want to divorce, but your visa matters. Your F-6-1(a) visa will expire when you are divorced. Your Korean spouse may also exploit your weakness in that you cannot be divorced if you want to stay in Korea. 

F-6-3 visa is exactly to relieve people who are in this situation. F-6-1(c) defines the eligibility of the visa as “[the applicant shall be] a person who cannot maintain a normal matrimonial relationship because of reasons not attributable to oneself.” If it is not your fault for the divorce, then you still can maintain your stay in Korea, even if you are not Korean. 

Reasons Not Attributable To Oneself

So, what are the reasons not attributable to oneself? In the Civil Act, certain reasons are stipulated causes for judicial divorce. 

Article 840 (Causes for Judicial Divorce)

Either husband or wife may apply to the Family Court for a divorce in each case of the following subparagraphs: <Amended on Jan. 13, 1990>

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 lineal ascendants;
4. If one spouse’s lineal ascendant has been extremely maltreated by the other spouse;
5. If the death or life of the other spouse has been unknown for three years;
6. If there exists any other serious cause for making it difficult to continue the marriage.

These are the causes that you can claim divorce against your spouse. Even in cases when you and your spouse have not reached an agreement to divorce if you have certain issues that fall under the clauses hereinabove, the judge will accept your claim. 

Except for Subparagraph 6, Subparagraphs 1 to 5 clearly state specific reasons for divorce. Those are causes that make a marriage unsustainable, such as unchastity (simply saying, adultery), malicious desert (you shall not desert your spouse when your spouse needs help. This is a legal obligation), or extreme maltreatment (includes domestic violence, but a broader concept.) In case of these, the completeness of your marriage must be damaged, so you cannot stand living with your spouse anymore. Therefore, what falls under these clauses shall be the reasons not attributable to oneself. 

Duality of The Subject of The Decision and The 2018Du66869 Supreme Court Decision

Still, the problem remains. The ones who determine the “reason” are split in two. This is a common phenomenon in contemporary democratic societies. The ones who shall decide the existence of the causes of judicial divorce are the judges of the judiciary. However, the ones who shall issue the F-6-3 visa to you are the officers of the administrative, especially the officers of the Ministry of Justice (법무부). Then, the officers of the Ministry of Justice shall once again examine the reasons why you and your spouse had divorced. In this case, can the officers of the Ministry of Justice overturn the presence of ”reasons not attributable to oneself”? For instance, can the Ministry of Justice say that “it is also your fault for the divorce, so the F-6-3 visa shall not be issued”? The 2018Du66869 decision of the Supreme Court is the answer to this question:

“Although the court in charge of an administrative lawsuit is not bound by findings of fact in a relevant judgment that became final, facts recognized in the relevant final judgment serve as strong evidentiary materials in an administrative lawsuit. Hence, inasmuch as there are no special circumstances making it difficult to adopt the determination of facts made in the relevant final judgment in view of other evidence submitted in an administrative lawsuit, facts contradicting what was recognized in the relevant final judgment shall not be accepted. Furthermore, we expect that family court judges under our legal system can make the most accurate determination regarding the issue of “who is mainly liable for the breakdown of marriage,” and thus, unless special circumstances arise, the immigration authority or the court in charge of an administrative lawsuit ought to respect the determinations made by the family court in a final divorce judgment when it comes to the granting of a status of stay for marriage-based immigration [F-6 Item (c)]. The court must refrain from readily overturning determinations of a final divorce judgment on the sole basis of the circumstances that may have been omitted from the findings of facts and determination of liability in the final divorce judgment, which are attributable to the failure of the parties to the divorce lawsuit to actively assert or prove such circumstances, and must be extremely cautious in rendering a determination different from the final divorce judgment.”

Supreme Court Decision 2018Du66869, decided July 4, 2019,

According to this decision, the most accurate determination regarding “who is mainly liable for the breakdown of marriage” is expected to be made by the Family Court. Therefore, if the decision of the family court states that it is a Korean spouse’s fault for the divorce, then the officers of the Ministry of Justice shall follow the decision. To overturn the determination, the officers must be “extremely cautious,” when rendering the decision, which means that there should be enough proof and significant reasons for that. In short, the judgment of the Family Court regarding the reason for divorce has a de facto binding force upon the Ministry of Justice. 

Conclusion

F-6-3 Visa is enacted to provide humanitarian relief to those who suffer from a harmful marriage. You can terminate your marriage life by a lawsuit, and then be granted an F-6-3 visa with the decision of the family court. Moreover, unless there are special and significant reasons to overturn the decision, the examination of the family court that your spouse is the one who is liable for the divorce shall not be overturned.

Seoul Law Group has various experiences with divorce cases. If you need any help, please do not hesitate to contact us.