Blog, Case Study, Divorce

A Korean husband sincerely loved and married his wife, and they had one child. Right from the honeymoon, however, arguments were frequent and serious. Five years into the marriage, the husband left his home and applied for a divorce.

A Court Case Riddled with Controversy

The court ruled that the husband was predominantly responsible for the relationship’s failure and hence, he lost the case. However, even after the court rejected his divorce application, he and his wife continued living separately.

The husband faithfully paid child support and mortgage on an apartment registered under his name where his wife and daughter resided. He also attempted to contact his child but received a cold response from his wife, she remodeled the apartment’s lock and did not share a copy of the key with her husband.

Two years later, the husband filed for divorce again. Would the court accept his request this time around? The husband had indeed lost the initial divorce case, but post that failure, he continued to pay child support and the apartment’s mortgage. He also took measures genuinely for the welfare of his family.

Korean Court Ruling on Divorce

The legal standards set for a spouse to be allowed to file a divorce in South Korea can be loosely categorized into the guilt principle (유책주의) and the breakdown principle (파탄주의).

Guilt Principle (유책주의):

• If one spouse violates marital obligation (e.g., adultery, desertion, domestic violence, etc.), the other spouse has a right to file for divorce.
• It protects the family and women by prohibiting the guilty spouse from filing for divorce, because in traditional Korean family, the husband was usually the one who was the head of the household, and also the one who usually violated the obligation. For example, if a husband cheated on his wife or assaulted her, he could not demand a divorce from her.
• However, this system can have the problem of forbidding divorce and forcing couples to maintain the façade of a marriage, when it is difficult to determine which party is responsible for the breakdown of the marriage, or even when the marriage has already broken down.

Breakdown Principle:

• Both spouses have a right to file for divorce when the marriage has objectively broken down, regardless of which spouse is responsible for it.
• It has the advantage of dissolving marriages that are irretrievably broken and allowing couples to make a fresh start.
• However, this system can be abused as an expulsion divorce (축출 이혼), in which the spouse responsible for the breakdown of the marriage kicks out the innocent other spouse.

The Supreme Court of Korea generally adheres to the guilt principle. Hence, it rarely accepts the divorce application put forth by the spouse at fault.

However, recently, as women’s social status has improved, concerns about expulsion divorce (축출 이혼) have decreased, and opinions are spreading that it is meaningless to maintain the façade of a marriage just because the wife refuses to divorce when the marriage has already broken down. Furthermore, since it is not easy for a couple to reunite and maintain a marital relationship again even if the court prohibits divorce, so there is a growing realization that divorce should be allowed in cases where the relationship has already broken down so that both parties can move on with their lives.

Accordingly, the Korean Supreme Court is showing a tendency to relax the guilt principle so that even the spouse at fault can file for divorce in exceptional cases. The criteria of that “exception” is as follows.

Criteria for a Successful Divorce Application

The Supreme Court of Korea adopted the following criteria to rule whether a spouse at fault can apply for divorce:

1) Even if the spouse at fault has shown no efforts to improve the relationship and has been continuing to live separately since their initial failure in divorce case, and the innocent spouse has consistently expressed their wish to continue the marriage, the court will account for these factors when assessing the motives of the spouses.

2) The court will also take into consideration how the spouse at fault has compensated the innocent spouse and their children after the initial failure in divorce. Even in cases where the innocent spouse continues to blame the spouse at fault and shows resistance to sort out the issues, if the spouse at fault has taken significant steps to protect and show affection to their partner and children, their guilt may be substantially mitigated.

3) An indispensable part of this assessment is the spouse at fault’s behaviour towards their partner and child. Especially if the innocent spouse and the child are in a considerably vulnerable state, needing significant help, the court will be cautious in permitting the spouse at fault to file for a divorce.

4) Even if the innocent spouse claims outwardly that they want to maintain the marriage, the court will need to determine whether this is genuine. For example, if the innocent spouse claims that they want to maintain the marriage but does not cooperate in restoring the marital relationship, only criticizes the other party and refuse to talk to them, remains indifferent to the court’s suggestion of marriage counseling, then it is highly likely that they have no real intention to maintain the marriage and is opposing the divorce simply out of resentment or revenge against the other party.

5) If there are minor children, the court must also consider the fact that maintaining the marriage may have a positive effect on the child’s welfare by creating an economically stable environment for raising them, but it may also have a negative effect on the child’s welfare by continuously exposing the child to the breakdown of the marriage and the conflict between the parents.

Drawing from these criteria, it can be gauged that in the case of our Korean husband and wife, the husband’s divorce application’s acceptance seems plausible this time around.

Disclaimer : This content is a translation of material originally published in Korean by the Ministry of Government Legislation of the Republic of Korea. While efforts have been made to ensure accuracy, this translation is provided for informational purposes only and does not carry legal weight. In the event of any discrepancy, the original Korean version shall prevail. Users should consult the official Korean documents for precise interpretation. This translation does not constitute legal advice. The translators and publishers shall not be held liable for any loss arising from reliance on this translation.