Ground for divorce in Korea: (2) Malicious Desertion

Civil Law, Article 840 (Causes for Judicial Divorce)

Either husband or wife may apply to the Korean Family Court for a divorce in each case of the following subparagraphs:

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.

“Abandonment” or “Desertion” is a ground for divorce in many countries, including Korea. When a person leaves the household and abandons their spouse, refusing to live with them nor supporting them financially, you can’t really expect the spouse to keep waiting for them forever.

But still, sometimes there is a valid reason for them to leave, such as going on a military service, or going on a long business trip, or leaving because they can’t stand the mistreatment any longer. This is why the Article 840(2) stated that the filing party should be “maliciously” deserted to claim a divorce in Korea. The desertion should be out of “malicious” intent, without any reason to justify it. For instance, if the spouses started living separately upon mutual agreement, that can’t be “malicious desertion” to either party.

Before we look over the cases, please note that “desertion” doesn’t only mean leaving the house themselves. If a person unjustly forces their spouse away from the household, the spouse who left would be the actual victim, while the person remaining in the house would be the one who “deserted” their spouse.

According to the Supreme Court, these are recognized as “malicious desertion.”

• The husband took another woman to his house and lived together, while he forced his own wife to leave the house and go to live somewhere else. In this case, she was forced to go live with her married daughter. (96Me1434 delivered on April 10, 1998)
• The husband was a Buddhist while his wife was not. When his wife kept being hostile against his religion, he left the house and became a Buddhist monk, and never returned for more than a decade. (90Me583 delivered on November 9, 1990)
• The wife kept running away from the house for three times, from ten days to one month each, even though the husband wanted her back, and there was a disabled son at home who constantly needed his mother’s care. (84Me27 delivered on July 10, 1984)

According to the Supreme Court, these are NOT “malicious desertion.”

• The wife left the house and went to live with her parents, but it was because her husband verbally abused her and neglected her. (89Me1085 delivered on March 23, 1990)
• The husband left the house, but it was because the conflict within his family was becoming way too heated, he decided to live separately for only temporarily until it cools down. He didn’t mean to leave forever. (85Me6 delivered on June 24, 1986)
• The wife left the house, but it was because her husband constantly spent all his time with his sister-in-law. He was running a restaurant with his sister-in-law, he discussed everything with her and even shared a room with her, while neglecting his own wife. (86Me26 delivered on May 27, 1986)