There has been a number of inquiries regarding the divorce procedure between foreigners in Korea, so PLO plans to post a total of 4 articles within 4 weeks, where we try to address the most common questions asked by our clients.
Our first article in the upcoming series is
Can I divorce in Korea under the Korean Law?
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 (i.e. Yongsan-gu, Mapo-gu): 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.
Next article on the PLO’s blog, “What is the basic procedure of divorce by agreement and trial and how long does it take?”, is coming in a week! Stay tuned!