Blog, Divorce

In previous articles, we have discussed the reasons for divorce in Korea one by one. Different reasons include adultery, malicious desertion, maltreatment, disappearance and other.

As we already have dealt with these, we are not going to discuss more specific reasons. Today’s topic is a more fundamental one – why are these reasons required? Can’t we just divorce when my marriage is already broken? Or Can I claim for divorce when I am at fault? To answer these questions, we need to discuss two major principles regarding divorce in Korea. 

The Fault Principle and the Breakdown Principle

The reason why we have discussed the “reasons” for the divorce is that it really matters. Basically, the one who has the legal cause for divorce may claim for divorce by trial. If you do not have a reason, which means that if your spouse is not faulty, then you cannot claim divorce by trial. You should seek other options – such as divorce by an agreement or a mediation. This principle is called the ”Fault Principle,” and it is the major principle adopted by the Korean Supreme Court. 

The legal philosophy lying under this principle is simple. If you are the guilty spouse, you shall not have the right to determine whether to maintain the marriage or not. Your spouse must have the whip hand. One may decide to maintain a marriage life with the fault (usually adultery) of the spouse forgiven. Or one may also leave with unhealed scars. Under the Fault Principle, that decision must be done by the innocent party of a marriage. The court shall acknowledge your claim for divorce only if your spouse is guilty. 

On the other hand, there is also another philosophy of law regarding divorce called “the Breakdown Principle.” According to this principle, the court shall acknowledge your claim for divorceif your marriage is already broken down, regardless of who’s fault it is.

This point of view is to respect the current situation of the marriage. If the married couple is still ”legally“ married while the marriage, in reality, is broken down as nothing, then why should the court treat them as a married couple? For instance, Korean Law respects a ”de facto marriage,” because it is important to respect reality. According to this principle, if a “de facto marriage” is acceptable, then a notion of “de facto divorce” shall also be accepted. 

Moreover, there even are cases where the non-faulty spouse does not agree to the divorce as a retaliation. In some cases, the maintaining of the nominal marriage itself could be an act of revenge, not of love. 

In this view, the fault should only remain in alimony. Whether a court admits a claim for divorce or not must be decided whether this married couple is sustaining a true marital life or not. 

The Attitude of the Supreme Court in Korea

The major principle of the Korean Supreme Court is the former one, the Fault Principle. One criticism of the Breakdown Principle is that there is a possibility of “driving out divorce” or ”one-sided divorce” by the faulty spouse. For instance, if you are wealthy and you just do not want to live with your spouse anymore, you may kick out your spouse and claim divorce regardless of the will of your spouse. The risk of this kind of unilateral divorce is one of the reasons why the Breakdown Principle has not been accepted by the Supreme Court for ages. 

2013meu(므)568, decided in September 15, 2015, reaffirmed such an attitude of the Supreme Court – Fault Principle being a major principle. However, in this decision, the Supreme Court added some clauses where the Breakdown Principle could be exceptionally applied. For example, if there is no possibility of ‘driving out/one-sided divorce,’ then it could be applied. However, the Supreme Court did not specify the standards to figure out such types of divorce. 

A Recent Supreme Court Decision

Recently, Supreme Court Decision has announced a new Supreme Court Decision (the standards to determine the ‘driving out/one-sided divorce) 2021meu(므)14258, decided in June 16, 2022. In the new decision, the Supreme Court finally specified the standards to determine whether it is a driving out/one-sided divorce. The following are the criteria that the Supreme Court may consider. 

1. The willingness to recover the marital life and cohabitation. This willingness must be determined objectively. 
2. The existence of reproach, criticism, and behavior which is incompatible with the recovery of marital life. 
3. Whether the willingness to non-divorce is due to an economic concern for oneself and one’s minor children or emotional revenge
4. The difference of the influence between the divorce and sustaining of marriage upon the welfare of minor children

The standards that the Supreme Court announced are not surprising nor strange. However, this decision is significant because it is the first decision to provide specific standards for determining a driving-out/one-sided divorce and an affirmation of broken-down marriage. 

Conclusion

Still, it is not that the Supreme Court had adopted the Breakdown Principle in a wholesale way. The area where the Breakdown Principle shall be applied is still exceptional, and the Fault Principle is dominating. However, as the Supreme Court had specified the standards, the cases of divorce with broken-down marriages are expected to increase. The ones who suffer from such marriage will be relieved also. 

Seoul Law Group has various experiences and expertise in divorce cases. If you have any problems, please do not hesitate to contact us. Seoul Law Group is here to help you.