Divorce in Korea for Foreigners – #1 Divorce Lawyer in Korea
Untying the knot in South Korea doesn’t have to turn into a K-pop drama, but divorce in Korea for foreigners requires research and must be taken seriously.
This blog post serves as your one-stop resource for all things divorce in the Republic of Korea as compiled by the #1 divorce lawyer in Korea here at Pureum Law Office (PLO).
South Korean law prescribes three types of divorce, by: 1) agreement [uncontested divorce, 협의이혼]; 2) mediation [조정이혼]; and 3) by trial [contested divorce, 재판상 이혼].
We examine the differences and similarities of each type to provide information to help foreigners seeking the best divorce lawyer in Seoul (and Korea).
1. Divorce by Agreement (합의이혼)
This is obviously the easiest and least acrimonious way to obtain a divorce in South Korea.
You have to reach an agreement on each of the following (i.e. these terms & conditions of the divorce that must be mentioned in the agreement):
a) whether or not the divorce will take place;
b) property division;
c) compensation for mental damage;
— and if you have children —
d) parental rights and custody holder;
e) amount of child support, if any; and
f) visitation rights
However, please be aware of the following incommodities:
a. Both parties TOGETHER shall visit the court with jurisdiction over the case;
b. You must WAIT at least 1 month (3 months if you have a child/children);
c. 1 (or 3) month(s) thereafter both parties shall TOGETHER revisit the court;
d. You have to prepare some complicated Korean documents, such as 협의이혼의사확인신청서, 가족관계증명서, 혼인관계증명서, 주민등록등본 and 양육 및 친권자결정에 관한 협의서 (if you have a child/children)
e. You have no other option except to file a lawsuit if any of the terms and conditions of the divorce agreement are not agreed to by your spouse.
The whole process can take from 1 to 3 months from the date of application (depending on whether or not children are part of the agreement).
2. Divorce by Mediation (조정이혼)
If you and your spouse already reached an agreement regarding divorce, but neither of you wants to wait for 3 months (especially those with children), or if you and your spouse only disagree on a few terms and want professional help from the court, you may be better off seeking divorce by mediation in Korea.
In fact, divorce by mediation is a mandatory process before divorce by trial; so, if you file for divorce against your spouse due to the failure of divorce by agreement, you will have to participate in the mediation process at least once before actual hearings can take place. It is entirely your decision whether or not to hire a lawyer for the mediation process. Nonetheless, hiring a lawyer with whom you can comfortably communicate, perfectly understands your terms and conditions, and is willing to fight for your best interests is highly recommended for the mediation process in Korea. If you have a lawyer, you are NOT required to attend the hearings.
Once the parties reach an agreement on all of the terms and conditions during mediation, the divorce will be considered finalized and a decree covering its terms and conditions will soon be issued. This divorce decree has the power of execution, so you can apply for legal enforcement without having to sue your ex-spouse if he/she violates any terms or conditions.
This process takes anywhere from 30 to 45 days from the date of application for mediation.
3. Divorce by Trial (소송이혼)
If either of the parties does not want to divorce OR if they both want to, but fail to reach an agreement regarding the terms of divorce; OR, if one party is missing, you can file a divorce complaint against your spouse in order to seek divorce by trial.
If you want to divorce by trial as a foreigner in Korea, you will almost certainly need to hire an attorney, given the difficulty in: 1) drafting a divorce complaint in Korean; 2) preparing necessary documents; and 3) representing yourself in a family court when seeking the best terms and conditions against your spouse — who will probably also hire a lawyer.
As previously mentioned, after filing a divorce lawsuit, you (or your lawyer) must attend the mediation hearing unless there are special circumstances. If the parties fail to agree with the terms & conditions as presented by the mediator during the process, you will probably be subject to several family investigations to verify the financial contribution of each spouse, which will decide the ratio of property division and examine who is more suitable to receive parental rights and/or custody holder (if you have a child or children).
This entire process can take time, upwards of 6 months before having the initial trial hearing. Thus, if mediation fails, the court will assign hearings, start listening to arguments by both parties, examine evidence submitted by each party, and then finally close the hearings. The court will announce its decision on a sentencing day held 3 to 4 weeks after the final hearing. If either party disagrees with the court’s decision, they can file an appeal within 14 days from the date of the decision. The attorney you hire only represents you in a family court during the 1st stage, so you may rehire them or change attorneys depending on the result. This is one of many reasons you need to be careful when hiring a divorce lawyer in Korea (or Seoul).
This entire process can take an average of from 6 to 12 months if the case is completed within its first stage.
FAQ _ Divorce in South Korea
1. My spouse and I have never registered nor reported our marriage to the Korean government; can we still divorce in Korea?
Yes, as long as the marriage is legally registered or reported to the respective authorities in your countries, the Korean Family Court will regard it as a legal marriage which can be dissolved in Korea by agreement(협의이혼) or a court decision(재판상 이혼).
2. My spouse and I are not Korean nationals; can we still divorce in Korea?
Under Article 2 of the ACT ON PRIVATE INTERNATIONAL LAW, in case a party or a case in dispute is substantively related to the Republic of Korea, a court shall have the international jurisdiction. So, if you spent most of your married life in Korea or have substantial evidence demonstrating the need for divorce to be held in Korea, the Korean Family Court will most likely admit its jurisdiction on the case even if the parties are not Koreans.
3. My spouse and I are not Korean nationals; which country’s Family law will be applied to my divorce case if the Korean Family Court has jurisdiction over it?
The answer to this question will depend on the nationalities of the parties and their habitual residence during the marital life.
1) Same nationality: the law of the nationality of both parties will be applied to the divorce process.
2) Different nationality: the law of the habitual residence of the parties will be applied to the divorce process. So, if the parties are habitually residing in Korea at the time of divorce, the Korean Family law will be applied.
3) Different nationality and different habitual residences: the law of the place which is most closely connected to both spouses will be applied. So, there is a high chance the Korean Family law will be applied in case of Korean Family Court has jurisdiction over the case.
4. I am foreigner but my spouse is Korean; can I divorce in Korea under the Korean Family law?
There is a high chance Korean Family Court has jurisdiction on the case since one party is a Korean national. In regard to the applicable law, if your spouse is having habitual residence in Korea, the Korean Family law will be applied. However, if your spouse does not have the habitual residence in Korea, the applicable law will be decided as described above in sub-paragraphs 3.2 and 3.3.
5. If the Korean Family law is applied to our divorce process, which family court has jurisdiction over the process? So that I know where I can submit an application of divorce by agreement or divorce lawsuit against my spouse. Under the Family Litigation Act,
1) Parties living together: The court that has jurisdiction over the location where the parties live
2) Parties living separately:
a) living close enough to share a family court that has jurisdiction over the areas of their residence (e.g. Yongsan or Mapo districts): that family court;
b) living far so there is no common family court that has jurisdiction over the areas of their residence (i.e. Yongsan-gu, Suwon): the family court that has jurisdiction over the place where the parties lived together before separation;
c) Neither a) or b): the family court that jurisdiction over the place where the defendant is residing;
d) One of parties deceased: the family court that has jurisdiction over the survived party;
e) Both parties deceased: the family court that has jurisdiction over either one of the parties’ last residential area.
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