Blog, Divorce

As society continues to shift and change and social cultures such as marriage and civil partnerships evolve with it, many individuals are seeking out better ways to safeguard their futures. One way to do this is by considering a marriage contract, commonly known as a prenup. Marriage contracts are common all over the world, including in South Korea. And while some may argue that Korea is a country deeply rooted in tradition, such contracts are gaining traction as practical tools to help individuals protect themselves.

Regardless of your relationship status, it is always beneficial to understand the process and benefits of obtaining a marriage contract. In order to help answer any questions about receiving this contract in Korea, this article will look into the intricacies of the document and discuss the benefits it offers specifically in Korea.

What is a Marriage Contract?

Although the term “marriage contract” may be familiar, one should not feel ashamed if they do not know the specifics. A marriage contract, also known as a prenuptial agreement (aka prenup), is a legal document signed by a couple prior to getting married or entering a civil partnership. The contract outlines the responsibilities of each individual should they face divorce, separation, or death. The reason many couples consider a marriage contract is to establish a clear framework when it comes to the distribution of assets, finances, custody, and other important matters.

Marriage contracts cover numerous aspects of a relationship. This includes, but is not limited to, the division of property and child custody agreements. Not only does it help alleviate tension in the case of separation, but it also helps individuals feel secure in protecting their own assets and interests. As an example, a marriage contract may explain how any assets obtained before and during the marriage will be divided in the event of a divorce. Another example is whether or not a spouse will pay alimony or how custody of children will be determined.

While there is a social stigma surrounding marriage contracts due to the fact that they appear to remove some of the romance and “till death do us part” constructs so prevalent in many societies around the world today, they nevertheless allow couples to be open and honest about a wide range of sensitive topics. If a marriage contract is well-written and overseen by a lawyer, many things can be protected, such as businesses, inheritances, and other valuable assets. In short, a marriage contract can provide peace of mind during what is often one of the most stressful and emotionally difficult moments of a person’s life.

Please note that the specifics of a marriage contract vary depending on where the contract was drafted and individual circumstances. When drafting a marriage contract, consultation with a legal professional (particularly those who specialize in family law) is recommended.

Marriage Contract in Korea

Unfortunately, the Western style of marriage contract is not yet available in Korea, as already discussed in the following articles on this website.

The closest thing to the marriage contract in Korea is called the “Agreement on Matrimonial Property (부부재산약정)” which is provided for in the Civil Act, Article 829. 

Article 829 (Agreement and its Alteration on Matrimonial Property)

• • 1. If husband and wife have not, prior to the formation of marriage, entered into a contract which provides otherwise with respect to their property, their property relation shall be governed by the provision of each Article of this Sub-Section.
    2. If husband and wife have, prior to the formation of marriage, entered into a contract with respect to their property, such contract may not be altered during the marriage: Provided, That if there is a due reason to alter such contract, it may be altered upon approval of the court.
    3. If, where one spouse manages the property of the other in accordance with the contract referred to in paragraph (2), and such property is imperiled by mismanagement, the other spouse may claim to the court for permission of its own management. In this case, if such property is common property between husband and wife, the other spouse may claim to the court for the division of such property.
    4. If husband and wife have entered into a contract regarding their property, such contract may not be enforced against a successor in title of the husband or wife or a third party unless it is registered prior to the formation of their marriage.
    5. If the manager has been changed or a division of property in co-ownership has been effected in accordance with paragraphs (2) and (3) or by a contract, such change or division may not be enforced against a successor in title of the husband or wife or against a third party unless it has been registered.

As mentioned in the previous article, this agreement is valid only in the matter of “properties.” You can still add various clauses regarding the marriage life, about your marital relationship and children, but those will not be valid in the eyes of the law. Only a matter of “property” shall be coded by the Matrimonial Property Agreement.

You may be sorely disappointed by this fact, and bring up what may be an even bigger discussion: What about making a property division agreement in advance in case my spouse and I divorce? Would that agreement be recognized as valid under Korean law?

Validity of Property Division Agreement Before Divorce

If you and your spouse are not yet divorced, but you still make an agreement of property division in advance of a future divorce, the validity of that agreement depends on the circumstances. For example, an agreement where one of the spouses completely waives the right for property division is unlikely to be recognized as valid.

There was a case where a Chinese wife wrote a document at the demand of her Korean husband stating, “I give up alimony and I will not request any property division when we divorce” and when they later divorced, the husband refused to give her anything based on that agreement. The wife sued the husband and the Korean Supreme Court ruled that the agreement was invalid. According to the court, if the couple had a serious discussion about their property division (the amount of their asset, each party’s contribution, method of division, etc.) and eventually agreed that one of them should give up the property upon reasonable grounds, it may have been accepted as a valid agreement. However since there was no serious discussion, and no reasonable ground for the wife to give up the whole property, the agreement was declared invalid.

In another case, the husband had an affair, but when he apologized to his wife and wrote a document stating, “I cheated on my wife, so I will not request any property division when we divorce,” the wife forgave him and decided to stay married. However, about 10 years later, the couple eventually decided to divorce. The husband wanted property division, while the wife claimed that all the property was hers based on the agreement they made 10 years ago. Again, the court ruled that the agreement was invalid.

Another important fact is that a property division agreement based on the premise of future “divorce by agreement” is only valid if the couple actually obtains a “divorce by agreement” later on.

There are roughly two types of divorce in Korea: divorce by agreement (협의이혼) and divorce by trial (재판상 이혼). “Divorce by agreement” is achieved when the couple mutually agrees to divorce. “Divorce by trial” is achieved through a lawsuit in court because the couple cannot agree on a divorce.

So, if you and your spouse decide to get a “divorce by agreement” in the future, and you have an agreement on property division, that agreement is only valid if you actually get a “divorce by agreement” later. If either you or your spouse later changes your mind and says you do not want a divorce anymore, or you cannot agree on the specific terms of the divorce, you would have to file a lawsuit to the court to get a divorce. This is a “divorce by trial,” which means your previous agreement is no longer valid. Your property division will be determined by the court.

Let us say that you successfully achieved a “divorce by agreement” and your property division agreement was recognized as valid. But it may not end there. What if you or your spouse hid their property during the negotiation process, and the other party only found it out after the divorce? Even in this case, the agreement is still valid. However, the other party can file a lawsuit demanding additional property division about that hidden property, within 2 years after divorce.

Validity of Child Custody and Child Support Agreement Before Divorce

What if you and your spouse are not yet divorced, but you still make an agreement of child custody and child support in advance of a future divorce? Again, the validity of that agreement depends on the circumstance.

If you successfully achieved a “divorce by agreement” with your spouse, then the agreement between you and your spouse is likely to be recognized as valid by the Court. But if you and your spouse could not come to an agreement, about the divorce itself or specific terms of divorce, and you had to go through the lawsuit, then the agreement is unlikely to be recognized. Child custody decisions made by the Court are based on the best interests of the child as perceived by the judge.

So, even if you made an agreement with your spouse that you would get the custody, if your spouse changed their mind and claims custody of the child, and the judge thinks that it is better for the child’s welfare to be raised by your spouse instead of you, then you might not get custody. But still, the fact that you and your spouse made an agreement before can be one of the factors for the judge to consider when deciding the child custody.