Blog, Divorce

Civil Law, 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:

1. 1. 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.

The fifth ground for divorce in Korea is when the spouse went missing, and unknown for three years if they are even dead or alive.

Though we should tell you that this one is very rarely used as a ground for divorce, because when a person leaves and cut off all communications, their spouses usually claim for divorce in the ground of “malicious desertion” (which we already looked over on February 19, 2021) rather than “disappearance.” So, this one is only practically used when the person got lost in serious disaster, such as a plane crash, earthquake, or a war, and they were never found again; dead or alive.

Please note that this divorce is different from “judicial declaration of disappearance” which happens when a person goes missing and it remains uncertain for five years whether they are alive or dead. When a person is judicially declared to be disappeared, they are considered legally deceased, which makes their spouse be widowed (not divorced) and free to remarry.

Civil Law, Article 27 (Judicial Declaration of Disappearance)

1. 1. 1. If it is uncertain for five years whether an absentee is alive or dead, the court shall, on the application of any person interested or of a public prosecutor, make a judicial declaration of disappearance.

Civil Law, Article 28 (Effect of Judicial Declaration of Disappearance)

A person against whom a judicial declaration of disappearance has been made is deemed to have died at the expiration of the period mentioned in the preceding Article.

Let us introduce SLG’s recent success related to this subject. Our client had been living separately with his wife for more than a decade. One day, she filed for divorce in the ground of “malicious desertion” and “death or life of the spouse has been unknown for three years,” and claimed an enormous amount of alimony.

SLG lawyers managed to prove that our client separated with his wife upon mutual agreement, and actually it was her who asked him to leave, which means it wasn’t “malicious desertion.” Also, even though our client had been living away from his wife, they occasionally contacted each other via emails or phone calls, which means it wasn’t “death or life of the spouse has been unknown for three years” either. Our client did agree to the divorce because he had no intention to go back to live with her again, but he didn’t owe her any alimony.

In the end, the court accepted our arguments. The court granted divorce, but rejected the plaintiff’s claim about alimony, and our client didn’t have to pay her, not even a penny. He is still living in Korea, single and free.