Consent or Tolerance on Unchastity: Do I have my wife’s forgiveness for cheating on her?

We already wrote about how adultery works in Korea in the previous article about grounds for divorce. To summarize it, “adultery” means a married person having sexual intercourse with another person than their spouses, while “act of unchastity” means any act violating marital fidelity even without sexual intercourse. “Adultery” used to be punished as a crime until it was declared unconstitutional in 2015, while “act of unchastity” is a ground for divorce in Korea.

In the end of that article, we mentioned that even if someone committed an “act of unchastity,” it cannot be a ground for divorce if their spouse gave a consent in advance or excused it afterward. It was according to Civil Law, Article 841.

Article 841 (Extinction of Right to Apply for Divorce due to Unchastity)

With respect to the cause mentioned in subparagraph 1 of Article 840, if the spouse has given a previous consent or an ex post facto tolerance to the other party, or if six months have passed since the spouse was aware of such act of unchastity of the other, or if two years have passed since the happening of such event, the spouse may not apply to the court for a divorce.

But what is exactly “previous consent” and “ex post facto tolerance” they are talking about? What kind of act can be recognized as “previous consent” and “ex post facto tolerance” according to the Supreme Court?

First, let’s see what they mean with “previous consent.” According to the Supreme Court of Korea, when both spouses are no longer willing to continue the marriage and there is a clear agreement of divorce, it is considered that the agreement includes consenting the other spouse to commit adultery, even if they are legally married. (97Do2245, delivered on November 11, 1997)

This is the ONLY situation that the court acknowledges the “previous consent” about unchastity. If there is no clear agreement of divorce between spouses, it is considered that “previous consent” is not there, even if the spouses really can’t stand each other and implying that they want divorce in indirect ways.

There was a case in Seoul Family Court where the husband cheated on his wife and told her that he wanted divorce. The wife agreed to divorce in condition that he gives her the house and 10 million won. She also sent a gift to the woman he was dating, which was a pair of panties, with a nice letter thanking her for taking care of her husband. BUT when the husband didn’t give the house to her, she refused to agree to divorce and said that she wanted to continue the marriage. The court judged that there was no consent for the husband’s unchastity for this, because there was no clear agreement of divorce. (2005Dehab6952, 2006Dehab7891, delivered on November 16, 2006).

Let’s move on to “ex post facto tolerance.” According to the Supreme Court, “ex post facto tolerance” is an expression that they will not hold their spouse responsible for their action because they want to continue the marriage. In order to be recognized as “ex post facto tolerance,” first, it must be done voluntarily while clearly knowing that their spouse committed “act of unchastity,” and second, it should be expressed clearly with a sincere intention to continue the marriage. (2000Do868 delivered on July 7, 2000)

So, in the case where the person said “I’ll forgive you. Just be honest with me” to draw the confession out from their spouse, the court judged that it cannot be “ex post facto tolerance.” (91Do2409 delivered on November 26, 1991) But in the case where the person visited their spouse’s lover and let them sign a paper that they will no longer see each other, it was recognized as “ex post facto tolerance,” because stopping them from seeing each other means that the person intends to continue the marriage with their spouse. (99Do2149 delivered on August 24, 1999)