In a society where people strive for peace and harmony, cases of domestic violence attract lots of attention and concerns, particularly when either of the spouses wishes to end their marriage. The big question is, can a spouse file for divorce if they are responsible for inducing violence?
In this light, let’s delve into a real-life situation that will help us understand this matter more clearly.
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S and J’s Marriage Taking a Turn
In August 2017, Mr. J and Ms. S got married after a passionate relationship. However, their blissful honeymoon phase was short-lived as they started to incessantly argue. This was mainly because Ms. S had started a job, and started coming home late or spent many nights out of the house.
After a heated argument in February 2018, Ms. S sent a text to Mr. J suggesting a divorce, to which an enraged Mr. J responded by hitting her. Although they reconciled with the intervention of a cousin, Mr. J’s violent actions continued over time. Things got to a point where Ms. S, unable to tolerate the threats and assaults any further, filed for a divorce. The question is, does she have the right to divorce?
The Arguments Raised
Mr. J acknowledged that it was wrong to hit Ms. S during their arguments, but he held that she also had a responsibility in instigating the violence through her late arrivals and nights out, without any remorse. On the other hand, Ms. S argued that the continuing domestic violence had made the marriage life unbearable, and while it was true she occasionally came home late or spent nights out since her employment, she cannot be entirely blamed for the falling apart of the marriage.
Two things are notably at play here with respect to the divorce. The first is whether Ms. S’s situation satisfies the conditions under Article 840, Paragraphs 3 and 6 of the Civil Law, which is the legal basis for a divorce.
The second thing is what is known as fault and breakdown principles during a divorce. The fault principle (유책주의) state that a divorce cannot be granted if the person requesting it is responsible for the breakdown of the married life, while the breakdown principle (파탄주의) holds that if the marriage has irretrievably broken down, a divorce should be granted regardless of who is requesting it.
The Fault Principle and the Breakdown Principle
Korean courts generally follow the fault principle and do not accept divorce claims from spouses who are responsible for the breakdown of the marriage. The reasons are as follows.
- To prevent results that violate the principle of good faith
- To maintain the morality required by the marriage system
- To prevent divorce or expulsion from marriage based on the will of one party
- To protect the other spouse
This was a principle to prevent situations such as an abusive husband unilaterally filing for divorce to drive his wife out.
However, even if the spouse at fault files for divorce, the court may exceptionally grant a divorce under the following circumstances:
- When the other spouse also has no intention of continuing the marriage. This includes cases where the other spouse outwardly refuses divorce but it is objectively clear that they have no intention of continuing the marriage.
- When the fault of the spouse seeking divorce is offset. That is, when the protection and consideration shown to the other spouse and children are sufficient to offset the fault.
- When the fault of the spouse seeking divorce has been weakened. This includes cases where, despite events such as violence or infidelity, a significant amount of time has passed, and the fault of the spouse at fault and the mental suffering endured by the other spouse have gradually diminished to the point where it is no longer meaningful to strictly determine the degree of responsibility of both parties.
In order to determine these circumstances, the court comprehensively considers the following factors:
- The degree of fault of the spouse at fault
- The intention of the other spouse to continue the marriage and their feelings toward the spouse at fault
- The age of the parties, the duration of the marriage, and the specific living environment after the marriage
- The period of separation and the living relationship formed between the spouses after separation
- Whether there have been any changes in circumstances after the breakdown of the marriage
- The mental, social, and economic condition of the other spouse and the extent of their livelihood if divorce is granted
- The circumstances regarding the custody, education, and welfare of minor children
The Final Verdict
In a similar case, the lower court acknowledged the defendant’s (Mr. J’s) act of violence but did not accept the plaintiff’s (Ms. S’s) claim for divorce, citing inadequate proof that the plaintiff had received a severely unfair treatment from the defendant, or that their marriage had reached an irreparable breakdown.
However, the Supreme Court overturned this ruling, stating that being subjected to severe physical or verbal assault, or insult to the extent that it would be cruel to demand the continuity of the marital relationship, constitutes ‘unjust treatment from a spouse’, which is a ground for divorce under Article 840, Paragraph 3 of the Civil Law. Moreover, if the marital relationship has broken down to the extent that it becomes unbearable pain to one spouse to continue the marriage, it counts as a ‘grave cause making it difficult to maintain the marriage’, and is also a ground for divorce under Article 840, Paragraph 6.
Therefore, Ms. S, in this case, had the right to demand a legal divorce from Mr. J.
*Decided on November 29, 2021.*
