CONTENTS
- 1. Dissolution of a Common-Law Marriage | Definition
- - Methods of Dissolving a Common-Law Marriage
- 2. Dissolution of a Common-Law Marriage | Property Issues
- - Requirements for Claiming Division of Marital Property
- - Division of Marital Property Is Possible Even for an At-Fault Spouse
- - No Division in the Case of a Bigamous Common-Law Marriage
- - Preparation for Claiming Division of Marital Property
- 3. Dissolution of a Common-Law Marriage | Child and Child Support Issues
- - Determination of Child Custody and Parental Authority
- - Requirements for Claiming Child Support
- 4. Dissolution of a Common-Law Marriage | Claim for Consolation Money (Solatium)
- - Cases Where a Claim for Consolation Money Is Possible
- - Claim for Consolation Money Against a Third Party
- - Amount of Consolation Money
- 5. Dissolution of a Common-Law Marriage | Legal Procedure and Checklist
- - Divorce Attorney Support System
1. Dissolution of a Common-Law Marriage | Definition
Dissolution of common-law marriage refers to the procedure by which two people who have substantively lived a shared life as a married couple without a marriage report terminate that relationship.
Because a common-law marriage relationship has not been legally registered through a marriage report, there is no need to go through the usual divorce procedures (a divorce judgment by the family court, a divorce report) and similar steps.
However, because there was substantively a relationship comparable to married life, legal disputes such as division of property, claims for the right of custody and child support, and claims for consolation money may arise upon dissolution of the relationship.
Methods of Dissolving a Common-Law Marriage
Because a de facto marriage is a state without a formal marriage report, it may be dissolved freely in the following ways.
∙ Notice by one party (by any free means, such as orally, in writing, or by telephone)
There is no formal restriction on the dissolution procedure, but in preparation for a later dispute, it is advisable to leave behind materials that can prove the fact of dissolution, such as a written agreement or records of text messages and recordings.
Related News
2. Dissolution of a Common-Law Marriage | Property Issues
Upon the dissolution of a de facto marriage, the issue of division of marital property may become a point of contention, as when a legally married couple divorces.
In particular, if there is property formed through the joint cooperation of the couple during the period of the de facto marriage, the position of the Supreme Court precedent is that a claim for the division of that property is possible.
Supreme Court Judgment of March 10, 1995, 94Meu1379, 1386
Requirements for Claiming Division of Marital Property
To claim division of property upon the dissolution of a de facto marriage, the following requirements must be satisfied.
∙ The property must have been formed during the shared life
∙ A fact of contribution to the formation or maintenance of the property must be recognized
The Supreme Court presumes such property to be jointly owned by the two persons, and it determines the matter on the basis of the actual degree of contribution rather than merely whose name is on the title.
Division of Marital Property Is Possible Even for an At-Fault Spouse
Even if the cause of the dissolution of the de facto marriage lies with one party, a claim for division of property is not restricted.
This is because, unlike consolation money, division of property is judged not simply on the basis of fault but mainly on the basis of contribution to the formation of the property.
Supreme Court Decision 93Seu6, May 11, 1993
No Division in the Case of a Bigamous Common-Law Marriage
Meanwhile, where a person maintains a common-law relationship with a third party despite having a legal spouse, that is, in the case of a bigamous common-law marriage, a claim for division of property is not recognized absent special circumstances.
This is because a common-law marriage is a system protected on the premise of a relationship similar to marriage.
Supreme Court Decision 94Meu1638, decided September 26, 1995
Preparation for Claiming Division of Marital Property
In order to claim division of property upon the dissolution of a common-law marriage, it is important to sufficiently prepare materials that can prove the existence of the common-law marriage, the existence of common property, the degree of contribution, and the like.
∙ Birth report of a child (where a child was born from the common-law relationship)
∙ Materials relating to property formed together during the common-law marriage, such as deposits, real estate, and vehicles
∙ Account records and expenditure materials that can prove contributions to the formation or maintenance of property, such as joint title, the source of funds, and the sharing of living expenses
∙ Photographs, text messages, letters, statements of third parties, and the like that can prove the actual marital life
A claim for division of property is not a mere property dispute but a liquidation procedure based on the family relationship of a common-law marriage, so the preparation of supporting evidence can determine the outcome.
3. Dissolution of a Common-Law Marriage | Child and Child Support Issues
Upon the dissolution of a common-law marriage, a child born in the common-law relationship is legally regarded as a "child born out of wedlock."
This is because, while a legal mother-child relationship is formed with the mother at the same time as birth, a legal father-child relationship is not recognized with the father until the acknowledgment procedure has been completed.
Determination of Child Custody and Parental Authority
Upon dissolution of a common-law marriage, the custody and parental authority over the children may be determined by the parents through agreement.
However, if no agreement is reached, an application for designation of the custodian may be filed with the court (Civil Act Articles 837, 837-2, 843, etc.).
In addition, where a custody dispute arises, the determination is made on the basis of the child's welfare, so it is important to prepare materials concerning matters such as the actual childcare environment and the parents' childcare ability.
Requirements for Claiming Child Support
In order to claim child support, a legal father-child relationship must be established between the child and the father.
To this end, the legal relationship must first be recognized through one of the following methods.
∙ The child or the legal representative files an action for acknowledgment and obtains a judgment of acknowledgment (Article 863 of the Civil Act)
Through this process, once the legal father-child relationship is established, an obligation to bear child support arises for the father, and a claim for child support and its enforcement through the family court become possible.
Key information on an action for acknowledgment
Persons entitled to file | The child, lineal descendants, the legal representative |
Defendant | The father (where deceased, the prosecutor as opposing party) |
Period for filing | Where the father has died, within two years from the date the death became known |
Competent court | The family court at the opposing party's address |
※ Once the judgment of acknowledgment becomes final, the child is deemed a biological child from the time of birth, and matters such as child support and visitation rights may thereafter be discussed legally.
4. Dissolution of a Common-Law Marriage | Claim for Consolation Money (Solatium)
Upon the dissolution of a de facto marriage, if one party dissolved the de facto marriage without justifiable cause, the other party may claim compensation for mental harm, that is, consolation money (Civil Act Articles 750 and 751, and Family Litigation Act Article 2(1)1(c)).
Cases Where a Claim for Consolation Money Is Possible
Where the following grounds are recognized, consolation money may be claimed against the spouse responsible for the dissolution of the common-law marriage.
∙ Where there was an act of infidelity, such as an affair by the common-law spouse
∙ Where the common-law marriage relationship broke down due to abusive language, assault, or similar conduct
∙ Where one party received grossly unfair treatment from the common-law spouse or his or her lineal ascendants
∙ Improper interference by a third party that made it difficult to maintain the common-law marriage
(for example, persistent harassment by the parents-in-law) and similar grounds
The Supreme Court has held that, because spouses in a common-law marriage relationship also have duties of cohabitation, support, and cooperation, a party who unilaterally abandons these duties, maliciously deserts the other, or dissolves the relationship without justifiable cause cannot escape liability for damages (Supreme Court Decision 97Meu544, 551, Decided August 21, 1998).
Claim for Consolation Money Against a Third Party
Where the principal cause of the breakdown of a de facto marriage lies with a third party (for example: the spouse’s affair partner, interference by parents, and the like), consolation money may also be claimed against that third party.
However, it must be proven that the de facto marriage relationship existed, and it must be proven that the cause of the breakdown lies with the third party.
Key evidence
Materials proving the de facto marriage relationship | Cohabitation on the resident registration (registration as a cohabitant, records of move-in reports, and the like) |
Certified copies of the real estate registry under joint title and lease agreements | |
Joint-title bank accounts, cards, insurance subscription records, and the like | |
Photographs, letters, and SNS records showing circumstances of living as in a marriage | |
Written statements from family or relatives regarding the de facto marriage relationship | |
Wedding photographs or invitations | |
Materials proving that the cause of the breakdown of the de facto marriage lies with a third party | Messages with the affair partner, such as KakaoTalk, text messages, and emails |
Cohabitation or travel photographs with the third party, and lodging or flight records | |
Recorded calls between the spouse and the third party, or recordings of conversations revealing the affair | |
Written statements from acquaintances who know about the relationship between the spouse and the third party | |
Circumstances showing that the third party knew of the de facto marriage relationship (SNS messages, words and conduct, and the like) | |
Psychiatric treatment records, counseling records, and other materials showing the mental harm caused by the breakdown |
Amount of Consolation Money
The amount of consolation money is determined comprehensively by the court, taking into account the following factors.
∙ The circumstances of the dissolution and the grounds of fault
∙ The presence of children and the custody situation
∙ The degree of emotional harm
∙ Economic capacity and social status
※ A claim for consolation money must be filed within three years after the de facto marriage is terminated (Article 766 of the Civil Act).
5. Dissolution of a Common-Law Marriage | Legal Procedure and Checklist
Dissolution of a de facto marriage does not necessarily require formal procedures as in divorce litigation, but where there are substantive issues such as division of property, custody, and consolation money, it must be resolved through legal procedures.
In preparation for legal disputes after the dissolution of a de facto marriage, the following preparation is needed.
Procedures to confirm before and after the dissolution of a de facto marriage
∙ The relationship may be dissolved by mutual agreement or by unilateral notice
∙ Clearly communicate the intention to dissolve, and secure proof such as text messages and call recordings
② Securing evidence of the existence of the de facto marriage relationship
∙ Circumstances of shared life: cohabitation records, photographs, letters, utility payment records
∙ Circumstances of jointly formed property: jointly held bank accounts and real estate, insurance, financial records
∙ Supplementary materials such as written statements from family and acquaintances
③ Preparing a claim for division of property
∙ Prepare a list of joint property
∙ Secure materials on the degree of contribution to the formation of the property
∙ Collect data on the spouse's income and assets (including a request for the provision of financial transaction information)
④ Reviewing matters relating to children
∙ Agreement on designation of the person with parental authority and the custodian
∙ Determination of the method and amount of child support
∙ The father's acknowledgment (where not acknowledged, a claim for acknowledgment is necessary)
⑤ Determining whether to claim consolation money
∙ Review of who is responsible for the breakdown of the de facto marriage
∙ Secure materials proving wrongful breakdown and mental distress
∙ Where evidence relating to a third party is secured, a separate claim for damages is possible
⑥ Deciding whether to commence legal procedures
∙ Where agreement is difficult on division of property, child support, consolation money, etc.
→ A lawsuit may be brought before the competent family court, such as an action to confirm the existence or non-existence of a de facto marriage relationship,
a claim for division of property, a claim for acknowledgment, and a claim for designation of a custodian
Divorce Attorney Support System
This firm forms a task force of 1 to 20 members according to the scale and difficulty of the case to respond to the matter.
Based on its experience with a range of divorce cases, it forms a task force for each individual case to respond, and it has established a collaborative system with field-specific specialists such as accountants, tax accountants, and evidence investigation experts.
Through this, comprehensive assistance is possible, extending to derivative cases arising from the dissolution of a common-law marriage, such as division of property, the right of custody, consolation money, and suits for acknowledgment of parentage.
If you need related assistance, please request a consultation with a divorce attorney.
Watch related video content
for this case study.
Preparing for a commercial lawsuit? Types of affair evidence and how to collect them!
