CONTENTS
- 1. Uncontested Divorce | Definition
- - Substantive Requirements for an Uncontested Divorce
- - Formal Requirements for Divorce by Agreement
- 2. Uncontested Divorce | Procedure
- - Court with Jurisdiction over the Application for Confirmation of Intent
- - Documents Required When Applying for Confirmation of Intent
- - Procedure for Confirmation of Intent to Divorce by Agreement
- - Filing the Divorce Report with the Administrative Agency
- 3. Divorce by Agreement | How to Respond by Situation
- - When One Spouse Is a Foreign National or Resides Abroad
- - When You Have a Change of Mind During the Divorce
- 4. Divorce by Agreement | Property and Child Issues
- - Designation of a Person with Parental Authority and a Childcare Agreement Are Mandatory
- - A Claim for Consolation Money May Be Made for a Divorce Caused by Fault
- - Division of Joint Property Formed During the Marriage
- 5. Divorce by Agreement | Checklist
- - Preparing for a Divorce by Agreement
1. Uncontested Divorce | Definition
An uncontested divorce refers to the dissolution of the marital relationship by the spouses' agreement to divorce.
It is a procedure that is established by reaching agreement on the divorce and on matters such as parental authority and custody of the children, then obtaining confirmation of the intention to divorce from the family court and filing a report of divorce with the administrative authority.
For an uncontested divorce to be established, both the substantive requirements and the formal requirements must be satisfied in full.
Substantive Requirements for an Uncontested Divorce
For an uncontested divorce to be established, the following substantive requirements must be satisfied.
② The mutual intention to divorce must be accompanied by mental capacity
- A person under adult guardianship may also divorce, if they have mental capacity, with the consent of the guardian (Articles 808(2) and 835 of the Civil Act)
- A married minor is deemed an adult and may divorce freely (Article 826-2 of the Civil Act)
③ The parties must receive the guidance on divorce provided by the family court
④ Confirmation of the intention to divorce must be obtained after the divorce reflection period has lapsed
※ The period may be waived where there is an urgent ground such as violence (Article 836-2(3) of the Civil Act)
⑤ An agreement on parental authority and custody of the children, among other documents, must be submitted
- Submission is mandatory where there are minor children
- If no agreement is reached, the family court may decide (Articles 837(4) and 909(4) of the Civil Act)
The divorce reflection period varies depending on whether there are children.
If there are minor children (including a child in utero) | 3 months |
If there is a minor child who will reach the age of majority between 1 month and 3 months from now | The day the child reaches majority |
If there is a minor child who will reach the age of majority within 1 month | 1 month |
If there are no children or only adult children | 1 month |
Formal Requirements for Divorce by Agreement
Even where the substantive requirements above are met, a divorce by agreement does not take effect unless a divorce report is filed in accordance with the formal requirements below (Civil Act, Article 836(1)).
- The report must be filed within three months from the date the court issues the confirmation in order to take effect
- If the deadline is exceeded, the confirmation loses its effect
⇒ The procedure must be started again
2. Uncontested Divorce | Procedure
An uncontested divorce is not accomplished by mere agreement alone, and the procedures of confirmation by the family court and a report of divorce to the administrative authority must be carried out.
You must prepare step by step according to the procedure below.
② Application for confirmation of intention to divorce (family court)
③ Receipt of the court's divorce guidance
④ Lapse of the reflection period (1 month or 3 months depending on whether there are children)
⑤ Attendance at the family court and confirmation of intention to divorce
⑥ Issuance of an authenticated copy of the confirmation of intention to divorce
⑦ Report of divorce to the administrative authority (within 3 months from the date of issuance of the confirmation)
Court with Jurisdiction over the Application for Confirmation of Intent
An application for confirmation of intent for a divorce by agreement may be filed with one of the following.
∙ The family court having jurisdiction over the address of one of the spouses
Documents Required When Applying for Confirmation of Intent
To apply for confirmation of intent for a divorce by agreement, the following documents are required (Rules on the Registration of Family Relationships, etc., Article 73(4)).
(The signatures and seals of both spouses and two adult witnesses are required)
② One copy each of the family relationship certificate and the marriage relationship certificate of each spouse
③ If there are minor children
- One original and two copies of the agreement concerning the person with parental authority, the method of care, and the like
- Or three copies each of the certified original of the family court's adjudication and the certificate of finality
If the application for confirmation of intent to divorce is filed with the court having jurisdiction over the address, one copy of the resident registration abstract must also be submitted.
If one of the spouses is abroad, one copy of the abstract of the overseas Korean nationals registry is required, and postal fees for two service attempts must also be paid.
Procedure for Confirmation of Intent to Divorce by Agreement
After submitting the application for confirmation of intent to divorce by agreement to the family court, the spouses must appear on the designated confirmation date and have their intent to divorce confirmed.
This procedure is a core step in the establishment of a divorce by agreement, and the following requirements must be met for it to take effect.
- Bring identification (one of a resident registration card, driver's license, or passport)
- A personal seal must be brought, even if it is not a registered seal
② The spouses must appear on the designated confirmation date
∙ First confirmation date: the application is not automatically cancelled upon non-appearance
∙ If there is non-appearance through the second confirmation date, the application is automatically withdrawn
③ If the court confirms agreement on the intent to divorce
∙ A certified copy of the confirmation of intent to divorce is issued to each spouse, one copy each
∙ The divorce is finalized only when the confirmation is submitted to the administrative agency within three months
Filing the Divorce Report with the Administrative Agency
A person who has received a certified copy of the confirmation of intent to divorce from the family court must file the divorce within three months, and the divorce takes effect only upon filing.
If the above period has passed, a divorce report cannot be filed unless confirmation of intent to divorce is obtained from the court again.
Place of Filing | The registration base place |
Or the city hall, district office, eup office, or myeon office having jurisdiction over the address | |
Documents to Submit | ㉮ One copy of the confirmation issued by the court |
㉯ One copy of the divorce report | |
㉰ The reporting party's resident registration card and seal | |
(If there are minor children) The agreement concerning parental authority and care, or the certified original of the adjudication and the certificate of finality |
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3. Divorce by Agreement | How to Respond by Situation
A divorce by agreement is possible even where one spouse is a foreign national or resides abroad.
In addition, if a spouse has a change of mind during the process, the intent to divorce may be withdrawn as long as the divorce report has not yet been filed.
When One Spouse Is a Foreign National or Resides Abroad
A divorce by agreement is possible even where one or both spouses reside abroad, or where a spouse is a foreign national.
In such cases, however, the procedure can be complicated and may take a longer time, so thorough preparation is necessary.
① If both spouses reside abroad
∙ The diplomatic mission abroad proceeds in the order of ‘delivery of the divorce guidance document → preparation of a summary of statements → transmission to the Seoul Family Court’
∙ The Seoul Family Court confirms the intent to divorce after the reconsideration period has elapsed (three months where there are children, one month where there are none)
∙ A certified copy of the confirmation of intent to divorce is then issued through the diplomatic mission abroad
∙ One of the spouses may file the divorce report by submitting the confirmation to the diplomatic mission abroad within three months
② If only one spouse resides abroad
∙ The spouse abroad receives the divorce guidance document at the diplomatic mission abroad having jurisdiction and replies with the intent to divorce
∙ The family court issues a request to the diplomatic mission having jurisdiction over the other party, receives the reply, and confirms
∙ The spouse in Korea appears → the confirmation is issued
∙ The divorce report may be filed in Korea or at the diplomatic mission abroad (within three months)
③ If a person detained abroad or a foreign detainee is involved
∙ After receiving the reply, the intent to divorce is finally confirmed through the appearance of the spouse in Korea
∙ Thereafter, as in the general procedure, the confirmation is issued → the divorce report is filed
④ If the spouse is a foreign national
∙ For a foreign spouse, identification documents from the home country, divorce documents, notarized translations, and the like may additionally be required
∙ Depending on the case, confirmation of the family law of the relevant country may be necessary
When You Have a Change of Mind During the Divorce
Expressing an intent to divorce once does not necessarily mean that the divorce will be established.
Until the divorce report is filed, there are ways to withdraw the divorce.
The method varies depending on the point at which the withdrawal is made.
- During the reconsideration period or at any time before the confirmation date, the application for confirmation of intent to divorce by agreement may be withdrawn.
- The withdrawal is completed by submitting a ‘notice of withdrawal of application’ to the court, with no special documents required.
② Withdrawal after confirmation of intent to divorce
- Even after receiving the confirmation of intent to divorce from the family court, if the divorce report has not yet been filed, the divorce does not take effect unless the report is filed.
- If three months elapse without a divorce report, the confirmation loses its effect and the divorce becomes void.
If the intent to divorce no longer exists, submitting a ‘notice of withdrawal of intent to divorce’ to the administrative agency before the divorce report is filed is treated as a legal withdrawal of the intent to divorce.
※ However, if the notice of withdrawal is submitted after the divorce report has already been accepted, the divorce is deemed already established, and the withdrawal is not recognized (Rules on the Registration of Family Relationships, etc., Article 80(2)).
4. Divorce by Agreement | Property and Child Issues
In a divorce by agreement, simply agreeing to divorce is not sufficient.
The custody of and parental authority over minor children must be agreed upon or determined by the court, whereas the divorce may be established even if no agreement is reached on the division of property or consolation money.
Designation of a Person with Parental Authority and a Childcare Agreement Are Mandatory
To protect the welfare of children, the current Civil Act requires that, in a divorce by agreement, an agreement on the care of the children and the designation of the person with parental authority be submitted.
∙ Agreement designating the person with parental authority and the custodian
∙ Including the allocation of child support, visitation rights, and the like
⇒ If no agreement is reached, designation may be made through a court adjudication
② The court confirms the agreed content of the child support and prepares a ‘child support obligation record’
⇒This record has the effect of a title of debt
⇒It may be used for future claims for child support or for compulsory execution
A Claim for Consolation Money May Be Made for a Divorce Caused by Fault
A divorce by agreement is possible regardless of whether an agreement on consolation money has been reached.
However, where mental harm has arisen due to grounds attributable to one spouse (infidelity, violence, etc.), a lawsuit for consolation money may be brought after the divorce.
Requirements for a Claim for Consolation Money
∙ It is recognized as compensation for mental suffering
However, the right to claim is extinguished if the claim is not made within three years from the date of the divorce report.
Division of Joint Property Formed During the Marriage
In a divorce by agreement, the divorce is established even without a separate agreement on the division of property, and the property may afterward be settled through an adjudication on the claim for division of property before the court.
Subject of the Claim for Division of Property | Joint property formed through the cooperation of both parties during the marriage |
Ex) Jointly titled real estate, deposits, severance pay, business income, etc. | |
Period Within Which the Claim May Be Made | The claim may be made within two years from the date of divorce |
The right is extinguished once the limitation period has passed | |
Procedure | Where no agreement is reached, an ‘adjudication on the claim for division of property’ is filed with the family court |
It may be claimed together with consolation money, child support, and the like |
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5. Divorce by Agreement | Checklist
A divorce by agreement is not a procedure that ends with a simple agreement.
The divorce is finalized only when every step, from confirmation by the family court to the report to the administrative agency, is followed precisely.
There are also many matters to prepare in advance, such as the care of children, the settlement of property, and the necessary documents.
We recommend reviewing each item carefully using the checklist below.
Item | Details |
Whether the Intent to Divorce Is Agreed | Confirm whether both spouses have genuinely agreed to the divorce |
Whether There Are Minor Children | The reconsideration period, documents to be submitted, determination of the person with parental authority, and the like vary depending on whether there are children |
Calculation of the Divorce Reconsideration Period | With children: three months / without: one month (may be shortened where there is an urgent reason) |
Items to Prepare for the Application for Confirmation of Intent to Divorce by Agreement | Application, family relationship and marriage relationship certificates, (agreement concerning children), identification, seal, and the like |
Appearance on the Divorce by Agreement Date | Both spouses must appear, and the application may be automatically withdrawn upon non-appearance |
Report After Receiving the Confirmation of Intent to Divorce | The divorce is finalized only when the report is filed with the administrative agency within three months from the date of issuance |
Agreement on Child Care and Property | Confirm whether matters such as the person with parental authority, child support, division of property, and consolation money have been settled |
Whether a Party Resides Abroad or Is a Foreign National | Advance preparation is needed, such as the confirmation procedure through a diplomatic mission abroad and notarized translation documents |
※ The documents above may require additional submissions depending on the situation, so it is advisable to inquire in advance through the website or the civil affairs office of the competent court before applying.
Preparing for a Divorce by Agreement
This law firm includes a number of attorneys with experience averaging more than ten years, and it forms a task force of one to twenty members depending on the scale and difficulty of the case to handle the matter.
Through collaboration with professionals such as tax accountants, certified public accountants, and judicial scriveners, the firm designs a stable divorce that takes into account the period after the divorce as well.
If you are currently considering a divorce by agreement or are experiencing difficulty in the divorce settlement process, please feel free to request a consultation at any time through the 🔗Divorce Attorney Legal Consultation Booking.
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