International Divorce

The law to be applied to a couple's divorce (the governing law) is determined in the following order (Act on Private International Law, Article 66).

Where one of the spouses is a Republic of Korea national whose habitual residence is in the Republic of Korea, the divorce procedure proceeds under the Republic of Korea's Civil Act.

If both spouses are foreign nationals and are nationals of the same country, then even if they have a habitual residence in Korea and conduct the divorce litigation before a court of the Republic of Korea, the governing law applied is the national law of the spouses' home country.

If the spouses hold different nationalities (excluding the Republic of Korea) and their habitual residence is in Korea, the law of the Republic of Korea applies in the divorce litigation.

If none of the above applies, the law of the place most closely connected with the couple becomes the governing law.

Whether a given place is the one most closely connected with the couple is determined, in the specific circumstances, by comprehensively considering the following factors.

Both spouses must clearly consent to the divorce, and the intent must exist both at the time the divorce report is prepared and at the time it is accepted.

Like ordinary married couples, internationally married couples must also complete the family court’s guidance procedure, and the confirmation of the intention to divorce can be obtained only after the following divorce deliberation period has passed.

However, where there are urgent circumstances such as violence, the period may be waived or shortened.

Where there are minor children, a person with parental authority and a custodian must be designated upon an international divorce.

They may be designated through agreement, and where agreement is difficult, they may be determined through a trial by the family court (“Civil Act” Article 836-2(4)).

A divorce takes effect only when the intention to divorce is confirmed by the family court and a divorce report is filed (Article 836 (1) of the Civil Act).

At this point, the report must be filed within 3 months after the intention to divorce is confirmed by the court, and if that period has elapsed, the divorce report cannot be filed unless the court's confirmation of the intention to divorce is obtained again.

※ Where a divorce by agreement has been carried out under foreign law, the divorce is reported by sending a certificate of acceptance of the divorce to the office of the city (district), eup, or myeon that is the registered domicile of the Republic of Korea national.

In order to file for a judicial divorce under the Civil Act, a specific ground must exist.

Article 840 of the Civil Act provides that a judicial divorce may be filed for in the following situations.

In order to proceed with a judicial international divorce under the Civil Act, an application for conciliation must first be filed with the family court (Article 50(1) of the Family Litigation Act).

Where a lawsuit is filed directly without undergoing conciliation, the case is referred to conciliation, and it may be exempted from referral to conciliation only where there is a reason such as the following.

If conciliation is omitted or fails, divorce litigation proceeds.

Once the trial begins, written exchanges with the other party and oral argument dates proceed, and examination of evidence, such as examination of the parties and examination of witnesses, may be conducted in parallel.

After this, when the court pronounces the judgment in the divorce litigation, it takes effect.

A person who has brought an international divorce lawsuit must, within one month from the date the judgment becomes final, file a divorce report attaching a transcript of the adjudication and the certificate of finality thereof (Articles 78 and 58 of the Act on the Registration of Family Relations, etc.).

※ However, a national of the Republic of Korea who resides or stays abroad may also file at the Family Relations Registration Office for Overseas Koreans (proviso to Article 20(1) of the Act on the Registration of Family Relations, etc.).

※ Where a divorce by agreement has been effected under foreign law, the divorce report is completed by sending the certificate of acceptance of divorce to the office of the city (gu), eup, or myeon that is the registered domicile of the national of the Republic of Korea.

Where there is a minor child, the parents must determine the holder of parental authority and the custodian by agreement.

If no agreement is reached, the family court determines them through adjudication based on the welfare of the child (Civil Act, Article 836-2, paragraph 4).

In this case, the right of custody and parental authority over the child may be determined together or separately, and this is also connected with visitation rights.

In addition, designation of the holder of parental authority is mandatory even in a divorce by agreement, and in a judicial divorce, the family court may determine it separately.

A parent who does not have custody also has the right to contact and meet the child regularly (the right of visitation) (Article 837-2, Paragraph 1 of the Civil Act).

However, in the following circumstances, it may be restricted or excluded (Paragraph 2).

※ Visitation includes various methods such as in-person meetings, telephone calls, exchange of letters, and weekend stays.

Divorced spouses may claim division of marital property according to each party's contribution, and this applies equally to international divorces in which the Republic of Korea's 「Civil Act」 is the governing law (「Civil Act」 Article 839-2).

At this point, the right to claim division of marital property must be exercised within 2 years from the date of divorce, and once that period elapses, it is extinguished.

However, although division of overseas assets (overseas deposits, foreign real estate, and the like) is also possible, the application of private international law and local law is required, so a systematic legal review is necessary.

Where the divorce results from the other party's act of infidelity, assault, or other serious cause attributable to fault, the injured spouse may claim consolation money (solatium) (Articles 843 and 806 of the "Civil Act (Civil Code)").

Where there are grounds for nullity or annulment regarding the requirements for the formation of a marriage, the governing law is determined according to the following classification (see Article 63 of the Act on Private International Law).

Where there are grounds for nullity or cancellation regarding the effect of the marriage, the governing law is determined according to the order of laws set out below (「Act on Private International Law」 Article 64).

Our law firm has many specialized attorneys with extensive experience in international marriage and divorce cases.

Depending on the scale and difficulty of the case, we form a task force of 1 to 20 members and provide comprehensive assistance, from confirming the governing law to divorce and division of property procedures and claims for custody and child support.

If you need a legal review regarding international divorce, please request the assistance of a divorce attorney.