Thursday, May 9, 2019

May the divorce claim raised by an at-fault spouse be granted in Korea?

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May the divorce claim raised by an at-fault spouse be granted in Korea. The answer is “No”, but it is possible to say that “there is an exception.” Korean Civil Act adopts that a fault-divorce system, and a divorce claim raised by party who has causes for breakdown of marriage shall not be granted. However, as the rate of divorce has risen and individualism has spread, the need to adopt the principle of no fault divorce has increased.

It is worthy of note that Supreme court made it clear again on September 15, 2015 that Korean legal system does not need to accept the no fault divorce principle (Please refer to the precedent of Supreme Court en banc Decision 2013Meu568 Decided September 15, 2015). The reasons why the court ruled that no fault divorce principle shall not be granted lie not in the feature of the Korean legal system but also in the cultural and socio-economic background.

First of all, most of the legal systems adopting no fault divorce principle do not allow divorce by agreement. However, Korean Civil Act adopts divorce by agreement as well as divorce by trial. According to Supreme Court, through the process of divorce by agreement, the spouse having fault for breakdown of marriage may divorce by persuading the other spouse. Considering the fact that there is a chance that a spouse having fault may divorce by agreement, there is no need to accept no fault divorce principle under the Korean legal system.        

Second, Supreme Court noticed that bigamy is not penalized based on Korean Criminal Act. There are several legal systems stipulating the penalty for bigamy, but Korean Criminal Act does not prescribe bigamy as a crime even though Korean Civil Act prohibits bigamy and states it as a cause of annulment of marriage. Under the Korean legal system not having an article to penalize bigamy, one whose spouse has extramarital relations is not likely to be perfectly protected.

Third, the situation that gender equality has not been fully realized was also considered by Supreme Court. One of the purposes of not granting no fault divorce was to protect women who were likely to be expelled by their husbands who practiced bigamy or had concubines so were likely to be at a loss over how to make ends meet. Compared with those in the past, social status and economic power of women has been enhanced, but women without any economic strength are still likely to be expelled by their husbands at fault. Therefore, Supreme Court decided that not fault divorce principle shall not be granted in Korea.

Although Supreme Court clarified that it was not necessary to take the principle of no fault divorce under Korean legal system, it stated that there was a room for granting divorce claim raised by a spouse at a fault as an exception. Supreme Court suggested under what circumstances divorce claim raised by a spouse having faults. According to the court, a divorce claim raised by a spouse having fault may be accepted in case it is meaningless to scrutinize the faults or liabilities as long time goes by, it is not likely that one spouse will be expelled by the other spouse at fault and the spouse at fault has fulfilled his/her duty as a parent to the children. In sum, a divorce claim by at-fault spouse may be granted in case no one is sacrificed when the claim is granted.

Since 1990s, the rate divorce has sharply risen and personal happiness has been emphasized. In this vein, it has been argued that no fault divorce shall be granted as marriage without love does not need to be continued for the sake of personal happiness. However, Korean Supreme Court does not seem to change their precedent not accepting no fault divorce at the moment. Nobody exactly expects how the legal system will change and whether the court will adopt the principle of no fault divorce, but please note that a spouse who tries to divorce after sacrificing the other spouse’s happiness will not be granted for nothing even under no fault divorce system.   
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