Blog, Divorce

Can I make a prenuptial agreement in Korea? A prenuptial agreement is frequently used in the western world, if you are from those countries, you may think of making a prenuptial agreement before your marriage. The problem regarding the prenuptial agreement in Korea is that there is a statute regarding the prenuptial agreement in the Korean Civil Act, but it is not exactly the one you may think of. In this article, we are going to discuss the distinctive features, utility, and requirements of the Korean prenuptial agreement (Matrimonial Property Agreement). 

1. The distinctive feature of the Korean Prenuptial Agreement

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.

The first feature of the Korean prenuptial agreement is that it shall be only about “properties.” As you may see in the name of the statute, the official name of the agreement is “Matrimonial Property Agreement.” In a prenuptial agreement generally used in the western world, you may add various and comprehensive clauses regarding the marriage life. For instance, if you agreed with your wife to travel abroad together at least once a year. However, in Korean law, a clause of such shall not be valid. Only a matter of “property” shall be coded by the matrimonial property agreement. 

Second, it needs to be registered before the marriage. This means 1) it should be registered and 2) before the formation of marriage. In order to obtain a counterforce against any third party, it must be registered. Moreover, as marriage takes effect upon the marriage report, you shall write the agreement and register the agreement before the marriage report. 

Third, the agreement shall be only about the properties “during the marriage life.” You may expect to agree with your spouse upon the division of the property or the amount of the alimony in a prenuptial agreement. However, in Korea, the agreement is not about post-marriage(divorce), but rather about properties “during the marriage.” You cannot code the way to divide properties with your spouse in a Korean prenuptial agreement. 

2. The Utility of the Korean Prenuptial Agreement. 

Article 830 (Peculiar Property and Property of which Title is Uncertain)

(1) Inherent property belonging to either husband or wife from the time before the marriage and property acquired during the marriage in his or her own name shall constitute his or her peculiar property.

(2) Any property, of which title is uncertain between the husband and wife, shall be presumed to be in their co-ownership. <Amended on Dec. 31, 1977>

Then you may ask if the Korean prenuptial agreement is valid only when it comes to the “properties during the marriage life,” then what is the usage and meaning of the agreement. In fact, the Korean prenuptial agreement indirectly affects the division of the property. Here is how it works. 

According to Article 830 Paragraph 2, any property of which title is uncertain between the husband and wife shall be presumed to be in their co-ownership, and therefore be the object of the division in their divorce. However, inherent property belonging to either husband or wife from the time before the marriage shall constitute his or her “peculiar property (특유재산).” And if recognized as the “peculiar property,” then it shall not be the object of division in times of divorce. 

This is the point where the Korean prenuptial agreement works. The Korean prenuptial agreement shall clarify which property belongs to whom, and which one is the peculiar property. We can also figure out the ownership of the property by the name of the registration of the real estate, but the Korean real estate registry does not guarantee the ownership. It becomes a very frequent problem of “which belongs to whom” when it comes to divorce. However, if there is a Korean prenuptial agreement between the husband and wife, it becomes much easier to figure out which property is “peculiar property.” 

Moreover, it is also used to claim against the third party that certain property belongs to a husband or wife. It is not registered, it is presumed to be co-owned, therefore one party may dispose of its share to a third party. However, when the agreement is registered, it will guarantee you a “counterforce (대항력)” to claim against the third party that the share disposed of is your peculiar property. 

3. The requirements of the Korean Prenuptial Agreement

In accordance with the Office Regulations for Matrimonial Property Agreement, the following is required to register the agreement. 

1. The agreement
2. The certificate of a personal seal impression (or certificate of the officials on signature)
3. Proof of non-marriage report
4. Address
5. Identification number or certificate of date of birth

As a Korean prenuptial agreement is also a “prenuptial” agreement, it is required to be registered “before” the marriage report. 

4. Conclusion

So far, the western style of the prenuptial agreement is not available in Korea. Agreements only regarding the “properties” during “marriage life” shall be valid against any third party. Moreover, the agreement upon the division of the properties at the time of divorce also would not be valid. However, this agreement works as a “traffic control” of the ownership of the properties between the married couple. As the number of people registering the Korean prenuptial agreement is increasing year by year, you may also consider using it. 

Seoul Law Group has handled many marriage and divorce cases for foreign clients and has extensive experience in family law. We hope to help you find the rights you deserve. If you need any help, please do not hesitate to contact us. Seoul Law Group will be there to help you.