Family-Case Provisional Attachment and Provisional Injunction Procedure

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1. 1Identifying the target property and the right to be preserved
2. 2Submitting the application
3. 3Review
4. 4Order to provide security
5. 5Decision and enforcement
6. 6Objection and order to file suit
7. 7Relationship with the main lawsuit

• Basic step
• Additional action / option
• Rejection / objection
• End of procedure

Time required

The time to decision and enforcement varies by case and court, so check with the family court where you filed (a provisional attachment can be decided in writing without a hearing)

Cost

Stamp fee KRW 10,000 and service fee, registration commission costs, security (amount set by the court; can be provided as a guarantee with permission)

Procedure guide

Read from start to finish in order. Red text marks deadlines set by law.

1. 1

   Decide which property (real estate register, bank and branch for deposits, salary) to freeze in order to protect your right to claim property division and consolation money (the right to receive property and consolation money in a divorce). A right to receive money is protected by provisional attachment, and a right to have title to specific real estate transferred to you is protected by provisional injunction (Family Litigation Act §63). If you do not know the other party's property, freeze what you know first, and find the rest through property disclosure and property inquiry (§48-2, §48-3) when you file the main case (the divorce trial). This is because in a provisional attachment, the applicant must identify the property to be frozen.

2. 2

   In the application, state the right to be preserved (the right you want to protect) and the need for preservation (the risk that the other party will dispose of property), attach a marriage relation certificate, the register, materials on property built up during the marriage and materials on the breakdown of the marriage, and submit it to the family court where you will file the main case. The court freezes property only when both of these are shown. You pay a stamp fee of KRW 10,000 (Act on Stamps Attached for Civil Litigation, etc. §9(2)) and a service fee, and you can apply even before filing the main lawsuit.

3. 3

   The court can decide in writing without a hearing (Civil Execution Act §280(1)). It looks at whether the right you seek to protect appears to exist and whether it would be hard to collect unless the property is frozen now. If the application is dismissed, you can file an immediate appeal within 1 week from the day you are notified of the decision (Civil Execution Act §281(2), Civil Procedure Act §444(1)). The deadline is short, so decide what to do as soon as you receive the decision.

   Current step
4. 4

   The court may issue an order to provide security (a deposit) (Civil Execution Act §280(3)), or it may decide without security (Family Litigation Act §63(2)). The court sets the amount. This is to cover the loss the other party may suffer if the provisional attachment turns out to be wrongful. With the court's permission, you can provide a surety insurance policy (a guarantee). You must provide the security within the period set by the court, so if it looks like you will be late, check with the court right away.

5. 5

   Once you provide the security, the provisional attachment or provisional injunction decision is issued. For real estate, the court commissions (requests) the registry office to register it, and for deposits and salary, it takes effect when the decision reaches the bank or employer. The decision must be enforced within 2 weeks from the day you are notified (Civil Execution Act §292(2)). Enforcement can be carried out even before the decision is sent to the other party (Civil Execution Act §292(3)).

6. 6

   The other party can file an objection to the provisional attachment at any time without a time limit (Civil Execution Act §283), and if there is no main case, they can apply for an order to file suit (an order to file the case within a deadline) (§287). Once an order to file suit is issued, you must file the main lawsuit or adjudication within the period set by the court (2 weeks or more, Civil Execution Act §287(2)) (an application for divorce mediation also counts as filing the main case, Family Litigation Act §63(3)). If you miss it, the provisional attachment may be canceled and you may be liable for damages, so prepare the main case documents in advance. If the other party deposits a release deposit with the court, the enforcement is canceled and the deposit is frozen instead.

7. 7

   A provisional attachment only freezes property; it is not a procedure for collecting money. Once the amount is finalized in the divorce lawsuit or property division adjudication, you obtain a certificate of execution on the judgment or written adjudication, convert the provisional attachment into a full attachment, and collect through auction or collection. If you lose or withdraw the main case, you go through the procedures to cancel the provisional attachment and cancel the security (getting the deposit back).

Frequently asked questions

Practical questions that come up right away in this procedure.

QCan I apply even before filing a divorce lawsuit?

Yes, it is possible. Provisional attachment and provisional injunction (measures that temporarily freeze what is in dispute) can be applied for even before filing the main lawsuit.However, if the other party obtains an order to file suit, you must file the main case within the period set by the court. So you should start preparing the main case along with the application.

QWhat do I do if I do not know the other party's property?

Apply for the property you know about first. In a provisional attachment, you must identify the property to be frozen yourself, so start with what you know, such as the register for the home they live in or their main bank and branch.Property you do not know about is found through an application for a property disclosure or property inquiry when you file the main case (divorce lawsuit or property division adjudication), and then provisionally attached in addition.

QHow much are the costs and the security?

There is a stamp fee of KRW 10,000 and a service fee. For real estate, there are separate costs for the registration commission (the court's request to the registry office).The court may order you to provide security, or it may decide without security. With the court's permission, you can provide a surety insurance policy (a guarantee) instead of cash.

QHow long does a decision take, and will the other party find out?

The time it takes to reach a decision varies by case and court. If there is an order to provide security, the decision is issued after you provide the security.A provisional attachment can be decided in writing without a hearing. Enforcement can be carried out even before the decision is served on the other party (official delivery of court documents).

QDo I get money right away once I provisionally attach property?

No. A provisional attachment only freezes the property so the other party cannot dispose of it. After the amount is finalized in the divorce lawsuit or property division adjudication, you obtain a certificate of execution (proof permitting compulsory execution) on the judgment and collect through auction or collection.If you lose or withdraw the main case, the other party can apply to cancel the provisional attachment. If the provisional attachment was wrongful, you may have to pay damages.

QCan I do it on my own without a lawyer?

It is safer to get help from a lawyer or certified judicial scrivener. This is because which right you protect, which property you identify and how, and the amount of security decide the outcome.If done wrongly, you may even be liable for damages. You can also apply yourself.