To obtain a divorce in Korea when the spouse refuses, you should go through trial and the cause of the divorce must fall under one of the following six legal grounds for divorce stipulated in Article 840 of the Civil Act:
[Six Legal Grounds for Divorce in Korea]
1. In case of an adulterous act committed by one spouse
2. In case of malicious desertion by one spouse
3. In case of maltreatment or grievous insult from one spouse or their lineal ascendants, rendering the continuation of marriage extremely difficult
4. In case of maltreatment or grievous insult from one's lineal ascendants by the spouse, rendering the continuation of marriage extremely difficult
5. In case the whereabouts of one spouse remain unknown for three years or more
6. In case of any other grave cause making the continuation of marriage impossible
1. In case of an adulterous act committed by one spouse
① Meaning
An adulterous act by a spouse refers to any act by either spouse, after marriage, that violates their duty of fidelity and sexual exclusivity through their free will. This is a broader concept than adultery, which presupposes a sexual relationship (Supreme Court Decision 92므68 dated November 10, 1992).
Therefore, it is not necessary to prove a sexual relationship. Even KakaoTalk messages expressing affection, such as "I love you" or "I want to see you again," can serve as evidence of an adulterous act. Whether an act is considered adulterous depends on an evaluation of the degree and circumstances of each specific case.
However, if a sexual relationship occurred against one's will, such as in cases of rape, it is not considered an adulterous act. The duty of fidelity applies after marriage (or after the establishment of a de facto marital relationship), so pre-marital dating or cohabitation with others does not constitute grounds for divorce. Additionally, if the spouse consented to or forgave the adulterous act in advance or after the fact, they cannot request a divorce based on that act.
② Statute of Limitations
One cannot request a divorce based on an adulterous act after six months from the date of becoming aware of the act, or two years from the date the act occurred (Article 841 of the Civil Act).
The statute of limitations is based on either of these two conditions. Therefore, if the spouse's adulterous act is discovered more than two years after it occurred, a divorce cannot be requested.
However, various factors can contribute to the breakdown of a marriage relationship, not just an adulterous act by the spouse. These factors may fall under grounds such as "any other grave cause making the continuation of marriage impossible." Therefore, it is essential to consult with a divorce attorney to determine if your specific case meets the legal grounds for divorce.
③ Defendants
In case of filing for divorce due to an adulterous act by the spouse, the spouse and the person involved in the adulterous act (the other man/woman) can be named as co-defendants, and compensatory money can be claimed from the other man/woman.
If a divorce lawsuit is not filed, it is possible to file a separate lawsuit for compensatory money against the other man/woman (a lawsuit against the other man/woman).
For more detailed information on lawsuits against the other man/woman, please refer to the links below:
What is the lawsuit against the other man/woman?
Haeon Law Firm's cases in lawsuits against the other man/woman
2. In case of malicious desertion by one spouse
Malicious desertion by a spouse refers to a situation where a spouse, without justifiable reason, fails to fulfill the marital obligations of cohabitation, support, and cooperation.
For example, expelling the other spouse or using one's position to force the other spouse to leave their place of residence while living abroad could constitute malicious desertion. Conversely, leaving without notice and cutting off contact and financial support would also qualify.
In divorce litigation, there are cases where a spouse claims to have been deserted by the other spouse even though it was due his/her own violence or other reasons that forced the other spouse to leave. However, such cases do not constitute "malicious desertion by one spouse."
Additionally, malicious desertion is often recognized when the spouse has been deserted for an extended period, and temporary separation at the time of filing for divorce does not qualify.
3. In case of maltreatment or grievous insult from one spouse or their lineal ascendants (parents, parents-in-law, etc.), rendering the continuation of marriage extremely difficult
Maltreatment or grievous insult from one spouse or their lineal ascendants refers to situations where the spouse or their lineal ascendants subject the other spouse to physical abuse, mistreatment, or insults to such an extent that it is considered cruel to demand the continuation of the marriage relationship (Supreme Court Decision 2003므1890 dated February 27, 2004).
4. In case of maltreatment or grievous insult from one's lineal ascendants by the spouse, rendering the continuation of marriage extremely difficult
Maltreatment or grievous insult from one's lineal ascendants by the spouse refers to situations where one's lineal ascendants are subjected to physical abuse, mistreatment, or insults by the spouse to such an extent that it becomes unbearable to continue the marriage relationship (Supreme Court Decision 86므14 dated May 27, 1986).
5. In case the whereabouts of one spouse remain unknown for three years or more
A spouse's whereabouts being unknown means that the living status of the spouse cannot be proven at all, and this condition has continued for three years or more at the time of filing for divorce.
If the spouse's whereabouts are unknown, it ultimately means that the complaint cannot be served to the spouse. In such cases, the divorce is decided through a trial with public service of the complaint.
6. In case of any other grave cause making the continuation of marriage impossible
Any other grave cause making the continuation of marriage impossible refers to a situation where the essential marital relationship of a harmonious spousal life has deteriorated to such an extent that it cannot be restored, making the continuation of the marriage an unbearable hardship for one spouse (Supreme Court Decision 2005므1689 dated December 23, 2005).
Whether there exists a grave cause making the continuation of marriage impossible is determined by considering various factors, including the degree of marital breakdown, the presence or absence of the intention to continue the marriage, the duration of the marital life, the responsibility of the parties, the age of the parties, the assurance of livelihood after the divorce, and other circumstances related to the marriage (Supreme Court Decision 99므1986 dated September 5, 2000).
In most divorce cases, instead of a single ground being applicable, various grounds often apply in combination. To determine if your specific case meets the legal grounds for divorce, it is essential to have an in-depth consultation with a divorce attorney specializing in such cases.
The Complete Guide to Divorce Litigation in Korea
7. Which divorce attorney in Korea should you consult with?
The attorney that other lawyers trust to handle their own divorce cases.
The attorney that opposing lawyers refer their own familys to.
This is what Law Office Haeon is.
1) The Lawyers' Family Law attorney – Haeon
The fact that lawyers in Korea entrust their own or their family’s cases to Haeon is proof of our expertise. Even lawyers with no prior personal connection often come to us based on our established reputation within the legal community. We are the lawyers' family law attorney.
2) All Our Attorneys are Seasoned Professionals
Haeon's family law team consists entirely of senior attorneys who passed the bar exam between 2010-2012 and have years of experience practicing family law. This ensures our attorneys have the necessary expertise.
3) In-House CPA for Sophisticated Asset Valuation
Properly valuing a spouse's business interests is crucial in property division cases. However, only a handful of major law offices in Korea have in-house CPAs specializing in business valuation and forensic accounting - services that can cost millions or even tens of millions of won when retained separately.
Haeon has a consulting CPA who previously worked at a top-3 conglomerate of Korea and KPMG Accounting Firm. Our CPA partner provides sophisticated valuation, fraud investigation and transaction advisory services at a reasonable cost to protect our clients' interests.
4) English Interpreter Ready
At Haeon, we have an in-house interpreter who previously served as an English interpreter for the ROK Army and U.S. Army, working alongside them on joint operations. Even if your Korean language skills are limited, making it difficult to fully explain your situation, our interpreter ensures you can communicate seamlessly during your consultation. We bridge the language gap so you can get the legal guidance you need.
In times of crisis, everyone claims to be the best. But the truly superior attorney proves it through results. Haeon has the sophisticated expertise to deliver what you need.
