In the previous articles of PLO we have talked about whether it is possible for a foreigner to get a divorce in Korea, what the procedure and time frames are and what the grounds for a judicial divorce can be.
This time we are going to take a look at the connection between the F-6 visa and divorce and matters related to alimony, custody rights and child rearing expenses in the form of Q&A.
1. I have an F-6 visa, but I heard that if I get a divorce, I’m going to lose it. Is that true?
In principle, the F-6 visa is granted to those who got legally married and live together with their Korean spouse, which means that in case of divorce and separation of spouses the foreign party loses his or her right for the F-6 visa, so it is true.
However, there are two exceptions to this rule.
The first exception is when there is a child who is a minor. In this case, if after a divorce procedure you end up having custodial or visitation rights, you can change your visa from F-6-1 to F-6-2 and stay on it until the child reaches the age of majority.
The second exception is when the fault of the marriage breakup is 100% another spouse’s responsibility. Thus, this exception cannot be applied when a divorce is made through agreement or mediation, it has to be a judicial divorce where the responsibility of the other spouse will be recognized in the court’s decision. But since in most cases both parties are responsible for the divorce, a 100% win in a judicial divorce is very hard. Therefore, we think that this rule should be changed by the Immigration Office.
2. Both my spouse and I are foreigners who want to get divorced in Korea, but the spouse is asking for alimony. Do I have to provide alimony to my spouse?
In cases when a Korean court can exercise jurisdiction over the case and the applicable law is the Korean law, there will be no obligation to provide alimony, as there are no provisions in the Korean law related to it. However, if the applicable law is a foreign law, there is a possibility that an obligation to pay alimony will be imposed on the spouse according to the foreign law. Since Korean judges do not have an extensive understanding of this concept, you will have to actively demonstrate and prove the other spouse’s alimony obligations according to the foreign law.
3. I am a foreign man and my spouse is a Korean woman, we are preparing to get a divorce, but we have a child. Since we are in Korea, I think that the majority of the custodial rights will be given to the woman, is that correct?
Unless there was an instance of child abuse and other negative actions toward the child, Korean courts usually do not give a lot of weight to the financial situation of a party and are inclined to award custodial rights to the spouse who has been taking care of the child the most. In Korea, most women take care of children staying at home, which is the reason why there are a lot of cases when a court, that does not consider the financial side, grants the custodial rights to the woman.
However, when both spouses were equally taking care of the child during the marriage or when there have been instances of violence and other negative behavior of the woman toward the child, or else if the woman has an unhealthy lifestyle because of a drinking/smoking/gambling/etc. problem, gets into debts spending money uncontrollably, etc., there is a good chance that the man may get the custodial rights.
4. My spouse and I are both foreigners who want to get divorced in Korea, but we are arguing over the child support. How can we decide how much should the child-rearing expenses be?
In 2017 the Seoul Family Court provided a table for the calculation of child-rearing expenses that have to be spent on a child based on the income of the parents and the child’s age. You can see the translated version below.
Let’s say, your monthly income is 4 million won and your spouse’s monthly income is 3 million won. You have two children, aged 3 and 6. Suppose, your spouse is going to be the one who will be raising both children. Then, since your incomes combined are in the range of 7,000,000 to 7,999,999 KRW according to the table, the total amount of money that has to be spent on the 3-year-old child is 1,576,000 KRW per month. Then, since your share in the common pool of incomes of your family is 4/7, you will have to pay only 900,571 KRW (=1,576,000 KRW X 4,000,000 KRW / 7,000,000 KRW) to your spouse. Similarly, if we look up the expenses for the 6-year-old, we’ll see that the amount should be 1,605,000 KRW per month. And again, since your share in the total income is only 4/7, you will have to pay 917,143 KRW (=1,605,000 KRW X 4,000,000 KRW / 7,000,000 KRW) to your spouse.
The calculations above are based on the table. However, if there are any special circumstances to be considered or if there is an agreement between the spouses, the Korean Family Court can ignore the table and order the child support to be paid in a different way.
This is the last part in our series of articles about the Korean divorce system where we tried to give an insight into the divorce procedure and explain the main points and nuances of the Korean divorce process and what consequences it may entail from the legal point of view. We hope that you found them useful. However, if you still have some questions, you can always contact us at [email protected] or call our office.