Dear expats in Korea, here is the second article in our series about the divorce procedure in Korea. Last time we discussed about whether a foreigner can get a divorce in Korea and now we are going to talk about ways to divorce.
There are 3 ways to divorce in Korea: Divorce by Agreement (Uncontested divorce, 협의이혼), Divorce by Mediation and Divorce by trial (Contested divorce, 재판상 이혼).
Below we will look over the differences and similarities they have.
Divorce by agreement (합의이혼). As you might know, this is the easiest way to divorce.
You have to reach an agreement on each of the following (i.e. these are the terms and conditions of the divorce that have to be mentioned in the agreement):
a) Whether the divorce will take place at all;
b) Property division;
c) Compensation for mental damage;
— If you have children—
d) Parental right and custody holder;
e) Amount of child support; and
f) Visitation rights
However, there are some incommodities as mentioned below:
a. Both parties shall TOGETHER visit the court that has jurisdiction over the case;
b. You have to WAIT for at least 1 month (or 3 months if you have a child);
c. 1 (or 3) month(s) later, both parties shall visit the court TOGETHER AGAIN;
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)
e. You have no option but to file a lawsuit if any of the terms and conditions of the divorce agreement are not followed by your ex-spouse.
Estimated length of the whole process is 1 to 3 months from the date of application (depending on whether there is a child).
2. Divorce by Mediation (조정이혼)
If you and your spouse have already reached an agreement regarding the divorce but don’t want to wait 3 months (especially those who have a child) or you and your spouse only disagree on a few of terms and want to seek professional help from the court, you may be better off getting a divorce by mediation in Korea.
In fact, divorce by mediation is a mandatory process before divorce by trial; so, if you file a divorce complaint 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. It is totally up to you whether you hire a lawyer or not for the mediation process. However, hiring a lawyer who can speak your language, 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 do NOT have to attend the hearings.
Once the parties reach an agreement on all the terms and conditions of the divorce in the mediation hearing, the divorce case will be considered finalized and the divorce decree that covers the terms and conditions of the divorce will be issued shortly after. This divorce decree has power of execution, so you can apply for legal enforcement without having to sue your ex-spouse if he/she is violating any terms and conditions of the divorce.
Estimated length of this process is 30 to 45 days starting from the date of application for mediation.
3. Divorce by Trial (소송이혼)
If one of the parties does not want to divorce OR they both want to but fail to reach an agreement regarding the terms of divorce OR one of the parties is missing, you can file a divorce complaint against your spouse in order to get divorced by trial.
If you want to divorce by trial as a foreigner in Korea, you will inevitably have to hire an attorney for yourself because it is almost impossible for you to draft the divorce complaint in Korean, prepare all the necessary documents and represent yourself in the family court to draw the best terms and conditions against your spouse who will probably also have a lawyer.
As mentioned above, if you file a divorce lawsuit, you or your lawyer will have to attend the mediation hearing unless there are special circumstances preventing you from attending. In the mediation process, if the parties fail to agree with the terms and conditions modified by the mediator, there will probably be a couple of family investigations to verify the financial contribution of each spouse to decide the ratio of property division and to examine who is more suitable as a parental right and custody holder in case you have a child. This process may take a while, even up to 6 months before having the initial hearing for the trial. Thus, if mediation does not work, the court will assign hearings, start listening to the arguments from both parties, examine the evidence submitted by the parties and close the hearings afterwards. The court will announce the decision on the sentencing day which will be held in 3 or 4 weeks after the last hearing and the party that does not agree with the court’s decision can file an appeal within 14 days from the date it received the decision. The attorney you hire only represents you in the family court of the 1st instance so you should decide to rehire him/her or change your attorney depending on the result.
Estimated length of this process is 6 months to 1 year if the case is finalized in the 1st instance.
Next article will cover the legal grounds for divorce by trial in Korea. Stay tuned!