Divorcing Your Spouse (Husband or Wife)
Living in a foreign country is hard enough as it is, but getting a divorce and dealing with public institutions can be more complicated and even daunting when you realize how many factors there are to consider. For those who have found themselves in such a situation, we have prepared a guide that will hopefully help you make a decision on whether you can get file for a divorce in South Korea and if you can, which course of action you should choose.
Korean Divorce Laws & Settlements for Foreigners & Expats
According to the Korean divorce laws, there are 3 ways to divorce in Korea available to Korean citizens as well as foreigners and expats: divorce by agreement (Uncontested divorce, 협의이혼), divorce by mediation(조정이혼) and divorce by trial (Contested divorce, 재판상 이혼).
Divorce by Agreement (협의이혼)
Requires the conditions of the divorce to be laid out in a form of settlement for the later acceptance and approval by the court. The terms and conditions of such a settlement must include:
- whether the divorce will take place at all
- property division
- compensation for mental damage
Additional conditions that have to be settled if you have children:
- parental and custodial rights
- amount of child support
- visitation rights
Estimated Time Period: Approximately 30 days without children, up to 3 months if you have children from the day you and your spouse visit the court for the first time to file a consensual divorce intention confirmation document.
Legal Representation: Not necessary
Divorce by Mediation (조정이혼)
If you and your spouse have already:
- reached a settlement regarding the divorce but don’t want to wait 3 months (especially those who have children)
- you and your spouse only disagree on a few terms and want to seek professional help from the court
- you and your spouse have already agreed on everything but don’t want to bother preparing all the documents and visiting the court
you may be better off choosing this way of divorcing. Once you reach a settlement in court, a divorce decree will be issued and you will be able to enforce the terms of the divorce agreement without having to sue your spouse in case of non-compliance, which is the biggest difference with the divorce by agreement, where if your spouse breaks the settlement agreement you have no other option but to litigate.
Estimated Time Period: 30 to 45 days from the day of application of divorce by mediation
Legal Representation: Only necessary if you hope to avoid drafting all the documents in Korean and attending hearings.
Divorce by Trial (재판상 이혼)
If one of the parties does not want to divorce OR they both want to but fail to reach a settlement regarding the terms of divorce OR one of the parties is missing, you can file a divorce complaint against your spouse and get a divorce by trial.
The Korean divorce laws require that you first undergo a mediation process (mandatory) and if you still do not reach a settlement, a family investigation aimed at evaluating the financial contribution and parental and custodial suitability of each spouse shall be carried out. Next, the court assigns hearings, starts listening to the arguments from both parties, examines the evidence submitted by the parties and closes the hearings afterward.
If you want to divorce by trial as a foreigner or expat in Korea, you will inevitably have to hire an attorney for yourself because it is almost impossible for you to draft the divorce complaint in Korean, prepare all the necessary documents and represent yourself in the family court to draw the best terms and conditions against your spouse who will probably also have a lawyer.
Korea follows the model of guilt-based divorce (Verschuldensprinzip) where, unlike in the countries with a no-fault divorce model, the party that is responsible for the marriage failure, cannot file a suit for divorce or it will be dismissed if it is filed.
It also means that when drafting a divorce complaint, you have to mention what the reason of the marriage failure is. The list of such reasons set out by the Korean divorce law is as follows:
Article 840 of the Civil Act of Korea (Causes for Judicial Divorce)
Either husband or wife may apply to the Family Court for divorce in each case of the following subparagraphs:
- If the other spouse has committed an act of unchastity;
- If one spouse has been maliciously deserted by the other spouse;
- If one spouse has been extremely maltreated by the other spouse or his or her lineal ascendants;
- If one spouse’s lineal ascendant has been extremely maltreated by the other spouse;
- If the death or life of the other spouse has been unknown for three years;
- If there exists any other serious cause for making it difficult to continue the marriage.
Estimated Time Period: 6 months to 1 year
Legal Representation: Practically necessary, otherwise drafting of documents and participation in hearings will have to be done in Korean by the parties themselves.
International & Overseas Divorce Proceedings
The very first question that needs to be resolved when you are thinking of getting a divorce in Korea is whether your marriage, being international and possibly reported overseas, is eligible for it at all. If one of the spouses is Korean, then a Korean court will most likely be able to adjudicate such matter (although the applicable law will not necessarily be Korean).
However, if both spouses are foreign nationals, a Korean court will only be able to consider their international divorce case if the marriage was duly reported to the respective authorities (in Korea or overseas) and if a party or a case in dispute is substantively related to the Republic of Korea (for example, the marriage was reported in Korea, you spent most of your married life in this country, grounds for divorce & evidence pertaining thereto occurred in Korea, parties agree that the courts of Korea will have jurisdiction over their case, etc.)
Child Custody Policies
When it comes to children, the most important moments are parental and custodial rights and the policies that the country has regarding child custody. Parental rights and custody are not necessarily given to the mother. Currently, the Korean courts are inclined to award custodial rights to the spouse who has been taking care of the child the most.
As for the exact amount of child support, in 2017 the Seoul Family Court provided a table for the calculation of child-rearing expenses that have to be spent on a child based on the income of the parents and the child’s age. You can see the translated version below.
Let’s say, your monthly income is 4 million won and your spouse’s monthly income is 3 million won. You have two children, aged 3 and 6. Suppose, your spouse is going to be the one who has custody of both children. Then, since your incomes combined are in the range of 7,000,000 to 7,999,999 KRW according to the table above, the total amount of money that has to be spent on the 3-year-old child is 1,576,000 KRW per month.
Then, since your share in the common pool of incomes of your family is 4/7, you will have to pay only 900,571 KRW (=1,576,000 KRW X 4,000,000 KRW / 7,000,000 KRW) to your spouse. Similarly, if we look up the expenses for the 6-year-old, we’ll see that the amount should be 1,605,000 KRW per month. And again, since your share in the total income is only 4/7, you will have to pay 917,143 KRW (=1,605,000 KRW X 4,000,000 KRW / 7,000,000 KRW) to your spouse.
The calculations above are based on the table. However, if there are any special circumstances to be considered or if there is a settlement agreement between the spouses, the Korean Family Court can ignore the table and order the child support to be paid in a different way.
Alimony in Korea
One of the most important questions is probably the question of financial support after the divorce is over. There is no concept of alimony in the Korean law, however, it is possible to claim child support for your children. It does not mean that receiving alimony in Korea is impossible in principle, though. If the applicable law in the divorce process is that of a country other than Korea, a country whose law does recognize spousal alimony, then it is still possible to get awarded that in a Korean court. Also, when both parties divorce by agreement or mediation agree to give and receive alimony to the other party, it is possible.
Keeping Your F6 Visa After the Divorce
As a foreigner, knowing how to divorce is not enough. One must also know what happens to him/her, the children and his/her visa status once the divorce is completed. Usually, foreigners who stay in Korea while being married to a Korean national have the F-6 (marriage) visa. So, are you going to lose it after the divorce?
Yes, but there are two exceptions. You can keep the F-6 visa:
- you have children and you got awarded with custodial or substantial visitation rights as a result of divorce
- the marriage’s failure is 100% the other spouse’s fault (however please note that getting a 100% win is very hard)
Getting Help with Your Divorce – Divorce Lawyer in Seoul
As you can see, the divorce procedure in Korea is well-regulated and there is almost always a way to find a solution to your particular situation. We are sorry if you are experiencing this rather unpleasant period in life and should you need any legal help to deal with your situation, our team of highly qualified and experienced attorneys can always help you find the most advantageous and least harmful process for each party of a divorce. We employ not only our substantial experience and knowledge of dealing with family issues but also our expertise in handling situations involving foreigners and their legal status in the Republic of Korea.
For frequently asked questions on getting a divorce in South Korea, click here.
Do you have any questions? Leave a comment below! You can also check out 10 Magazine’s top English-speaking Lawyers in Korea.