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South Korea: Supreme Court Keeps Unfaithful Spouses from Being Able to File for Divorce

(Oct. 13, 2015) On September 15, 2015, the Supreme Court of Korea upheld the precedent that a court may not grant a divorce when the petitioner is the spouse responsible for the breakdown of the marriage. (2013 므568 Divorce 이혼 (Sept. 15, 2015), Supreme Court of Korea website [click pdf file].) This was the first time the issue of whether an adulterous spouse can file for divorce was considered by a full panel of the Supreme Court. (Lee Kyung-mi, Supreme Court Upholds “Fault Divorce” System, HANKYOREH (Sept. 19, 2015).)

Relevant Provisions on Divorce

Article 840 of the Civil Act states in general that “[i]f the one spouse has committed an act of unchastity,” the other spouse may apply to the Family Court for a divorce. (Civil Act, Act No. 471, Feb. 22, 1958, art. 840, item 1, amended by Act No. 11728, Apr. 5, 2013, translated in STATUTES OF THE REPUBLIC OF KOREA.)

On the other hand, “[i]f there exists any other serious cause for making it difficult to continue the marriage,” a court may allow a spouse to file for divorce. (Id. art. 840, item 6.)

The Court Ruling

In the case examined by the Court, a husband filed for divorce against his wife; both spouses are in their sixties and have been living apart for about 15 years. The husband has a daughter with another woman and has been living with them as a family during these years. (Lee, supra.)

The vote among the Supreme Court justices who decided the case was close, at seven to six in favor of denying the filing of divorce. The majority found that “[w]hen the spouse who is responsible for breaking up the marriage asks for a divorce on the grounds of that marriage breaking up, that’s a violation of the principle of good faith.” (Id.) The Court also took into account the gender equality issue. In Korea, many women have difficulty supporting themselves and raising their children after divorce. (Id.) Therefore, it seems that the justices chose not to make getting a divorce easier by allowing at-fault spouses to file divorce suits.

The Supreme Court also noted that the decision does not entirely rule out divorce initiated by the at-fault spouse. The Court stated that courts could allow that type of divorce in special circumstances, such as when enough time has passed that the guilt of the spouse at fault and the mental pain of the other spouse have faded, by taking into account the degree of responsibility of the spouse at fault, the will and feelings of the other spouse, the period of separation, and the extent to which the other spouse’s lifestyle can be maintained. (Id.) In addition, in Korea, a couple can divorce by mutual consent, without court proceedings. (Civil Act art. 834.) Therefore, an at-fault spouse can ask for a divorce outside the judicial process and can divorce as long as the other spouse agrees.

Korean family law attorneys expect that Korea will move to a no-fault divorce system in the future. (Lee, supra.) Earlier this year, the Constitutional Court decided that a law that made adultery a crime was unconstitutional. (Sayuri Umeda, South Korea: Criminal Provision on Adultery Held Unconstitutional, GLOBAL LEGAL MONITOR (Mar. 24, 2015).)