Seeking a Korean divorce and navigating the Korean legal system can be emotionally challenging, even more so if you’re a foreigner in Korea. IPG Legal has assisted numerous foreigners and local Korean clients at the Seoul Family Court and other courts in Korea in order to obtain a divorce for foreigners in Korea. We have, also, handled numerous child custody, Hague Abduction Treaty, asset division, and abduction cases for clients living in Korea or residing abroad.
Getting a Korean Divorce in South Korean as a Foreigner
There are several things to consider before making a decision to divorce your spouse in Korea, as it involves issues like what type of divorce you can avail of can you even get one including child custody issues, asset division, and a myriad of other related issues.
Some preliminary questions to consider are: Do you know the whereabouts of your spouse? How will the assets be divided? Can you still stay in Korea and handle all legal issues related to children’s custody and visitation rights? Can you maintain your visa after your divorce? How long is the process of getting a divorce?
We shall handle these and other issues in this post on Korea’s divorce laws and procedures. Here is a checklist that you can refer to: Korea Divorce Checklist for Negotiation of a Marital Separation Agreement in Korea that is useful in negotiating a Korean separation agreement. We suggest that you forego self-help and get a professional to negotiate this agreement for you. It shall save you time, headaches and leads to a more likely opportunity to settle the matter.
What are the Legal Grounds for Divorce in Korea?
The grounds for divorce in Korea are the following.
- Adultery;
- Desertion;
- Extreme ill-treatment from Spouse’s Lineal Ascendant by the Spouse; or
- Death or Life of the Spouse has been unknown for Three Years;
These grounds, only, become an issue in the granting of a divorce in Korea if one spouse does not want to divorce. The Korean Family Court, typically, also enforces the requirement that the filing party’s hands are more clean than the party opposing divorce. We have found, in practice, in most cases after filing for divorce – that the opposing party shall agree to divorce. For more info on the grounds for divorce in Korea, please see: Legal Grounds for Divorce in Korea
Types of Divorces in Korea?
There are three types of divorces in Korea, each type is different from one another and which one would apply to you depends on your circumstances. In most cases, it is advisable for a non-Korean to obtain a Judicial Divorce via Divorce through Mediation or Divorce through Trial. These types of divorces shall lead to a Judicial Divorce in order to avoid any issues with a foreign jurisdiction recognizing a Divorce by Agreement, which is not a common practice in jurisdictions abroad and can be considered a non-judicial divorce by some jurisdictions and thus not enforceable abroad.
1. Divorce by Agreement (합의이혼):
This type of Korean divorce occurs when both spouses agree to end their marriage and are able to reach an agreement on issues such as division of property, child custody, spousal support, and all other major areas of contention. In this case, they can file for divorce by agreement with the Family Court or the court handling family law matters in the area.
The filing of a Divorce by Agreement is a non-adversarial process. Both parties should visit the local court with jurisdiction of the matter and fill out some forms. The court clerk shall, normally, schedule a court case with you around one to three months from the date of visiting this court. If you have children, the court may require counseling and the filing of specific detailed documents before a judge grants the divorce. The process is often considered a non-judicial divorce.
We advise most clients not to proceed to a divorce via this process and instead file for a normal judicial divorce process in order to avoid any issues with a foreign jurisdiction recognizing a Divorce by Agreement.
2. Divorce by Mediation (조정이혼)
Another type of divorce in South Korea is divorce by mediation, or “조정이혼” in Korean. When spouses are willing to participate in mediation to try and achieve a resolution on matters like property division, child custody, and visitation rights but are unable to do so, a divorce by mediation takes place. In this situation, they are able to apply for a Korean divorce through mediation at the Korean Family Court or another appropriate court. The majority of the time, the Korean court will order mediation before moving on with a trial. In Korea, the average duration of a mediated divorce is under three months.
A mediator chosen by the Korean court will work with both parties during the divorce mediation procedure to help them settle the unresolved issues. The conditions will be written into the divorce decree if they are able to come to an agreement. This kind of procedure results in a judicial divorce, which is accepted as legal and enforceable in the majority of foreign jurisdictions. In Korea, the average duration of a mediated divorce is under three months. Then again, it all depends on the circumstances of each case matter.
3. Divorce by Trial (소송이혼)
Divorce by trial occurs when the spouses cannot reach an agreement on issues such as whether to divorce, fault, division of property, child custody, and spousal support, and they decide to proceed to the Korean court to resolve these issues.
In this scenario, one spouse will file a divorce petition with the local family court or appropriate court. The court will then hold a trial to hear the arguments and evidence presented by both parties and reach a verdict on the unresolved problems. The divorce decree will reflect the judgment of the Korean court. A divorce obtained through a court trial results in a formal judicial divorce that is accepted as legal and enforceable in most international jurisdictions. Most of the time, the court will order mediation before a case goes to trial.
F-6 visa and Divorce in Korea
The Korean F-6 visa is a type of South Korean visa that is issued to the foreign spouses of South Korean citizens or permanent residents. Depending on the circumstances, the status of an F-6 visa holder who gets divorced in South Korea may change. A F-6 visa is intended for a person who lives with their spouse. As a result, the visa is typically revoked after a divorce. After the divorce, the F-6 visa holder might have to submit an application for a new visa or have their visa status changed. For example, if their F-6 visa was based on their marriage to a South Korean citizen or permanent resident, they may no longer be eligible for the visa after the divorce. Two exceptions exist:
- When the F-6 visa holder obtains custody of a minor child of the marriage; and
- The marriage breakdown was caused “primarily” by the non-visa holder.
To completely understand their options and protect their visa status, F-6 visa holders in Korea who are going through a divorce in South Korea should get legal advice and assistance.
Can you Get a Divorce in Korea if the Whereabouts of your Spouse is Unknown?
Yes, it is possible to get a divorce even if the whereabouts of your spouse are unknown. This is known as a divorce by default judgment or “무고형 이혼” in Korean. You have to prove to the Korean court that you have made reasonable attempts to find your spouse but have been unable to do so in order to continue with a divorce by default judgment. Evidence of these efforts, such as the logs of any unsuccessful phone calls, emails, letters, or visits to your spouse’s last-known address, may be requested.
The divorce proceedings will be announced in a public publication for a set amount of time once the Korean court is satisfied that you have made reasonable efforts to find your spouse. The Korean court may award a divorce by default judgment if your spouse does not reply or contest the divorce within this time range. The distribution of property and assets, child custody, and maintenance are just a few of the potential restrictions that may apply to divorce by default judgment.
Can a Korean Divorce Be Recognized by Your Home Country?
The recognition of a South Korean divorce in another country depends on the laws of that country. It is advisable to obtain a judicial divorce, as non-judicial divorces may be against the laws of your home country. Additional steps or documentation may be required to recognize the divorce in a different jurisdiction. Hence, it would be better to seek advice from a divorce lawyer who has international experience.
Child Custody, Child Support, and Visitation Rights in Korea
Child custody, child support, and visitation rights are usually determined by the Korean family court or court with jurisdiction as part of the Korean divorce proceedings. The court in Korea will consider the best interests of the child when making decisions regarding these issues.
Child Custody: The best interests of the child are the main factor to be taken into account in Korea when deciding who gets custody. Depending on the specifics of the case, the court may issue sole custody to one parent or joint custody to both parents. The ability of each parent to provide the child’s physical, emotional, and developmental needs will be taken into account by the court, along with the child’s age, health, and educational requirements.
Child Support: Legally, both parents are required to support their children financially. Based on the child’s requirements and each parent’s financial resources, the family court in Korea sets the sum of child support. Child support obligations are typically met on a monthly basis and may last until the child turns 20.
Visitation Rights: The non-custodial parent has the right to spend time with their child during visitation. The requirements of the child and each parent’s availability may be taken into account when the court sets up a visitation plan. If the child is old and mature enough to express a preference, the court may also take that into account.
Property/Assets Division in Korea
The individual contributions made by each spouse, such as earnings or assets gained during the marriage, may be taken into consideration by the court. The Korean court will decide how to divide all assets, including real estate, bank accounts, investments, and personal property, after taking into account their value throughout the divorce process. Either the parties or the court can decide how the property will be divided.
If you want to know more about Divorce in South Korea, you may schedule a No-Charge Initial Consultation with an Attorney at: Please Schedule a Call with an Attorney. For more information please see: Korean Divorce & Family Law Archives.
