[Monday Column] Divorce and divorce, what is your choice?

While handling various divorce cases, I have some particularly memorable clients. These are people who are over 60 years old and come to see me saying, “I can no longer live with my spouse.” The reasons for deciding to divorce only after the children are all grown up, such as the spouse's continuous cheating, domestic violence and verbal abuse, extreme pressure to save, and the breakdown of the marriage due to conflict between the mother-in-law, are all varied, but in most cases, they have endured for a long period of time to protect their families.

Recently, not only celebrities and famous people, but also ordinary couples often choose to get married in order to separate from their spouses in their twilight years and live their own lives.

‘Graduated marriage’ is not a legal concept; it is literally ‘graduating from married life’, which means living separate lives without interfering with each other’s lives while maintaining a legal marriage relationship under mutual agreement between the couple.

Graduate marriage is presented as an alternative to divorce, which inevitably involves a process of dispute, but an accurate understanding of this is necessary because it does not usually involve division of property or claims for alimony like divorce, which is a legal procedure.

Even if a spouse has been a housewife all her life and has only done housework, if a divorce is filed at twilight, the right to claim property division for the joint property that both spouses have achieved through cooperation is recognized, and depending on the degree of contribution to property formation, an average of about 50% of the property can be divided.

In particular, if the other party has the right to receive a pension, according to Article 45 of the Civil Service Pension Act and Article 64 of the National Pension Act, if a person who has been married for more than 5 years divorces, he or she can claim an amount divided equally between the pension amount corresponding to the period of marriage. This can be decided differently during the divorce process through negotiation and trial, so it can serve as a living aid in old age when income decreases after divorce.

In principle, the subject of property division corresponds to property created through joint efforts during the marriage period. However, even in the case of unique property inherited by a spouse, if he or she contributed to the maintenance or increase of the property, it is advantageous because the property can be divided according to the degree of contribution.

The right to claim alimony is the right of one spouse to claim compensation for mental suffering suffered due to the illegal acts of the other spouse responsible for the breakdown of the marriage. Article 840 of the Civil Code stipulates six types of judicial grounds for divorce, including the spouse's misconduct, malicious abandonment, and other serious reasons that make it difficult to continue the marriage, and alimony can be claimed by alleging the illegal acts of the at-fault spouse in a divorce lawsuit or mediation.

However, in the case of a graduate marriage, unlike the ability to claim property division or alimony upon divorce, since they maintain a legal marriage relationship, if the couple has agreed on property division at the time of graduation, this is only an agreement between the parties as a property contract during marriage. Therefore, if detailed items are not specified, written with ambiguous phrases, or not notarized, it may become a spark for another dispute in the future.

If you live separately during the period of graduation and eventually get divorced, the period of marriage itself may not be recognized as the actual period of marriage. Conversely, the spouse who took advantage of the fact that the legal marriage was maintained may claim alimony by claiming that the other party violated the duty of chastity, putting them at a disadvantage in future divorce lawsuits. In addition, since you may become a defendant in an adultery lawsuit if you date someone who has graduated from marriage, you should first give in-depth consideration to the disputes that arise from graduating from marriage.

Although the couple can no longer live together due to an insurmountable conflict, there may be various reasons that third parties may not be aware of that prevent them from obtaining a legal divorce. However, careful attention is needed to ensure that graduation is a happy marriage and that it does not become a means for one spouse with an economic advantage to escape.

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[Monday Column] Divorce and divorce, what is your choice? (Shortcut)