CONTENTS
- 1. Common-Law Marriage Child Support, the Client Who Came to Daeryun
- - Actual Case: A Client Seeking to Claim Common-Law Child Support
- 2. Is a Common-Law Child Support Claim Actually Possible?
- - Case Law
- - Representative Categories of Child Support
- 3. Key Points of a Common-Law Child Support Claim
- - Whether a Common-Law Marriage Exists
- - The Child's Parent-Child Relationship
- - The Actual Caregiving Situation
- 4. Factors Considered in Calculating Common-Law Child Support
- - The Parents' Economic Capacity
- - The Child's Age and Necessary Expenses
- - The Caregiving Environment and Standard of Living
- 5. Common-Law Child Support Issues: Why the Assistance of an Attorney Is Needed
- - If You Receive the Assistance of a Divorce Attorney
1. Common-Law Marriage Child Support, the Client Who Came to Daeryun
Common-law marriage child support is an issue that frequently arises in the course of raising a child born in a common-law marriage relationship.
Although there are cases in which a person tries to evade child support responsibility on the grounds that there was no marriage registration, a parent's duty of support may be recognized regardless of whether there was a marriage.
Here, we will examine, through an actual case, how a common-law marriage child support claim can be made.
Actual Case: A Client Seeking to Claim Common-Law Child Support
The client and spouse A (hereinafter the respondent), with whom the client had lived together for many years and maintained a common-law marriage, had one child together.
Although the two had not filed a marriage report, they lived together as a family and raised the child.
After the common-law marriage ended, the client raised the child alone.
The respondent had promised to pay child support, but the actual payments were never made despite the passage of time.
As the burden of the educational and living expenses required while the child was growing up became difficult to bear, the client came to consider filing a claim for child support.
2. Is a Common-Law Child Support Claim Actually Possible?
Many people assume that, without a marriage report, it is difficult to claim child support.
However, according to case law, there are instances in which a parent's duty to provide support is recognized regardless of whether a marriage exists.
Case Law
The family register is an official document that proves a person's status relationships, and an entry in the register is presumed to have been lawfully made and to conform to the truth. However, such an entry does not in itself create a status relationship, so where evidence to the contrary of the entry emerges, that presumption is rebutted.
According to case law, an entry in the family relationship register (formerly the family register) is important evidence proving status relationships, but a legal status relationship cannot necessarily be deemed established by that entry alone.
In other words, family relationships are not conclusively determined solely by whether a marriage report has been filed, and they may be assessed by comprehensively considering the actual living relationship and various circumstances.
This legal principle also carries important significance in the context of a common-law marriage.
Even without a marriage report, if the relationship is one in which the parties have shared a common life over a long period and may in effect be recognized as spouses, the court may determine it to be a common-law marriage.
A party to a common-law marriage acquires the right to claim child support from the other party only when a ruling designating that party as the custodian of the child born from the relationship becomes final. Until then, the party has merely fulfilled their own inherent duty of support, and therefore cannot claim that portion of the child support from the other party.
Where such a common-law marriage is recognized and the parent-child relationship between the child and the parents is legally confirmed, the parents bear joint responsibility for support, so depending on the circumstances, a common-law child support claim may be possible.
Representative Categories of Child Support
Category | Main Content |
Living Expenses | Food, clothing, and housing costs |
Education Expenses | Private academy fees, textbook costs, and school-related expenses |
Medical Expenses | Hospital costs and insurance |
Other | Transportation costs |
3. Key Points of a Common-Law Child Support Claim
If, after a common-law marriage has ended, one parent is raising the child, then depending on the circumstances, a common-law child support claim may be possible.
However, the court does not recognize the payment of child support merely on the ground that there was a common-law marriage, but rather makes its determination by comprehensively considering various circumstances.
Whether a Common-Law Marriage Exists
First, whether the two were in a substantive common-law marriage becomes an important criterion for the determination.
• Whether an economic community was formed
• Whether those around them perceived them as a married couple
Where such circumstances are recognized, the likelihood that a common-law marriage will be recognized increases.
The Child's Parent-Child Relationship
In order to claim common-law child support, the legal parent-child relationship between the child and the parents must be recognized.
In the case of a child born out of wedlock, the paternal relationship must be legally recognized before child support can be claimed.
Where the father has acknowledged the child and reported the child as a biological child, the paternal relationship is recognized immediately. Where the father does not acknowledge the child, the child or the legal representative may file a paternity lawsuit and confirm the parent-child relationship through a court judgment.
According to Articles 863 and 864 of the Civil Act, a child born out of wedlock may file a paternity lawsuit at any time, and once the judgment becomes final, the parent-child relationship is recognized as having existed from the time of the child's birth.
In this way, where the parent-child relationship is legally recognized, the parents bear responsibility for raising the child, so a child support claim against the other party may become possible.
The Actual Caregiving Situation
The court also regards who is actually raising the child as an important criterion.
Considerations include which parent the child lives with and who is substantively responsible for the caregiving.
4. Factors Considered in Calculating Common-Law Child Support
Even where common-law child support is recognized, the specific amount is not determined uniformly but is decided by comprehensively considering various circumstances.
The Parents' Economic Capacity
One of the most important factors in calculating child support is the parents' income and asset situation.
The court determines the proportion of child support that each party must bear by considering the parents' financial capacity.
The Child's Age and Necessary Expenses
The child support required also varies depending on the child's age.
Category | Main Expenses |
Infants and Toddlers | Childcare costs and medical expenses |
Elementary School Students | Education costs and private academy fees |
Adolescents | Learning costs and living expenses |
The scale of child support may also vary depending on the child's stage of growth.
The Caregiving Environment and Standard of Living
The kind of environment in which the child has lived up to now also becomes an important criterion.
The court tends to set child support within the scope that serves the child's welfare, so a strategy that takes this into account is important.
5. Common-Law Child Support Issues: Why the Assistance of an Attorney Is Needed
After comprehensively reviewing these factors, the divorce attorney at Daeryun Law Firm focused on the point that, in the client's case, the existence of the common-law marriage and the fact of long-term sole caregiving were the central issues.
Accordingly, the attorney pursued the common-law child support claim with a focus on the circumstances of the child's upbringing, the actual living situation, and the period during which the other party failed to pay child support.
As a result, the divorce attorney was able to obtain from the court the granting of a claim of approximately 80 million won.
This was the result of comprehensively considering the circumstance that one parent had raised the child alone for a long period and the point that the other party had failed to properly fulfill the responsibility of caregiving.
If You Receive the Assistance of a Divorce Attorney
As in this case, the divorce attorney at Daeryun Law Firm carefully reviews the client's situation and, after comprehensively examining matters such as whether the common-law marriage will be recognized, the criteria for calculating child support, and the necessary evidentiary materials, presents a response strategy suited to the case.
If you are facing concerns over a common-law child support issue, 🔗scheduling a legal consultation with a divorce attorney will allow you to accurately review your current situation.
The divorce attorney will examine the core issues of the case and work together with you to prepare the necessary response measures so that your rights related to raising your child can be appropriately protected.
This content is based on actual case studies of Daeryun Law LLC with some adaptations, and the copyright belongs to our firm.
Unauthorized reproduction, duplication, or distribution and other copyright infringements may result in legal action under applicable laws.
