CONTENTS
- 1. Claim for Past Child Support, Overview of the Case
- 2. Claim for Past Child Support, the Supreme Court's Determination
- - Claim for Past Child Support, Treating the Failure to Seek a Division of Marital Property as a Substitute for the Duty of Support
- - Claim for Past Child Support, Argument That Past Child Support Should Be Calculated Based on the Difference Between Adult and Minor Children
- 3. Claim for Past Child Support, Decision to Reverse and Remand
1. Claim for Past Child Support, Overview of the Case
The claim for past child support concerned a demand for past child support and related amounts for the children concerned, brought approximately 16 years after a divorce by agreement.
The claimant had raised the children concerned alone after the divorce by agreement, and approximately 16 years later, the claimant filed for adjudication seeking from the other party past child support of 26 million won for child concerned 1, an adult child, and 38.6 million won for child concerned 2, a minor child, totaling 64.6 million won, as well as future child support of 350,000 won per month for child concerned 2.
The lower court held that it was reasonable to set the past child support for the children concerned that the other party should bear at 60 million won, and the future child support for child concerned 2 at 350,000 won per month.
However, during the marriage the other party had purchased and resided in the apartment at issue together with the claimant, and had repaid in full the loan obligation incurred to fund the purchase by means of an interim settlement of the other party's retirement allowance. After the divorce by agreement, there were circumstances indicating that the other party had not sought a division of marital property from the claimant.
2. Claim for Past Child Support, the Supreme Court's Determination
In the claim for past child support, the Supreme Court held that the lower court's determination was difficult to accept as it stood.
The Supreme Court held that the lower court should have examined whether the other party's failure to seek a division of marital property had contributed to the upbringing of the children concerned, whether the property subject to division that the other party had not sought to divide had been substantially provided for the upbringing of the children concerned, and whether the difference between an adult child seeking only past child support and a minor child seeking both past and future child support had affected the calculation of child support.
Claim for Past Child Support, Treating the Failure to Seek a Division of Marital Property as a Substitute for the Duty of Support
The apartment at issue was an apartment that the other party and the claimant had purchased and resided in together, and because the other party had repaid in full the loan obligation relating to the apartment at issue by means of an interim settlement of the other party's retirement allowance, there is room to regard it as joint property.
However, after the divorce by agreement, the other party did not seek a division of marital property as to the apartment at issue from the claimant, so that ownership ultimately vested in the claimant.
The children concerned had resided in the apartment at issue for a considerable period around the time of the divorce by agreement, and because the other party did not seek a division of marital property as to the apartment at issue, the children concerned were able to be raised stably in the apartment.
The Supreme Court took the view that there was room to assess such conduct by the other party as having substituted for all or part of the performance of the duty of support, and held that these circumstances should be reflected in the calculation of child support.
Claim for Past Child Support, Argument That Past Child Support Should Be Calculated Based on the Difference Between Adult and Minor Children
With respect to the apportionment of past child support for a child, from the time the child reaches the age of majority, an agreement between the relevant parties or an adjudication by the family court carries only the meaning of specifically fixing, through confirmation and evaluation of the past circumstances of upbringing and the expenses incurred, the amount of past child support that the other party is reasonably found to bear. (See Supreme Court, en banc Decision of July 18, 2024, 2018 Seu 724)
The Supreme Court held that, in this way, the meaning of fixing and apportioning past child support differs between a case where the child concerned has already reached the age of majority and a case where the child is a minor, and that a court determining the apportionment of past child support for an adult child between divorced spouses needs, on the basis of this difference, to examine the parties' financial circumstances, economic capacity, and the fairness of the burden, and to reflect the results in its determination.
3. Claim for Past Child Support, Decision to Reverse and Remand
As to the claim for past child support, the Supreme Court held that, with respect to the apartment that constitutes joint property formed together by the other party and the claimant, the children concerned appear to have resided there for a considerable period around the time of the divorce by agreement, and because the other party had repaid in full the loan obligation relating to the apartment at issue with the other party's retirement allowance, there was room to assess this as having substituted for all or part of the performance of the duty of support.
In addition, child concerned 1 had already reached the age of majority at the time of this claim for child support, while child concerned 2 was a minor, so this difference should have been reflected in the examination of the scope of past child support to be set, but it appears that this was not taken into account.
The Supreme Court stated that the lower court should have examined whether the other party, by not seeking a division of marital property upon divorce, had contributed to the upbringing of the children concerned, and should have considered the calculation of child support in light of the parties' financial circumstances, economic capacity, and the fairness of the burden.
Accordingly, the Supreme Court decided to reverse the lower decision and remand the case to the lower court for further examination and determination.
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