International Divorce Jurisdiction in Korean Courts
When both spouses are Korean nationals residing in Korea, there is no dispute that Korean courts have jurisdiction over their divorce proceedings.
However, in international divorce cases, determining whether Korean courts can exercise jurisdiction must be reviewed before initiating the divorce litigation. Proceeding in Korean courts without proper jurisdiction risks the case being dismissed entirely.
This legal guidance will explain the circumstances under which Korean courts have jurisdictional authority over international divorces.
1. The "Private International Act" and International Jurisdiction
To file a case in Korean courts, the courts must have international jurisdiction over the matter under the Private International Act. This act was comprehensively amended in 2022 after 20 years.
Article 2 (General Principle) states that Korean courts have international jurisdiction if a party or subject matter of the dispute has a substantive relationship with Korea.
Additionally, Article 3 (General Jurisdiction) provides that Korean courts have jurisdiction over cases involving persons whose habitual residence is in Korea.
*Habitual Residence: Replacing the former term "principal place of residence," this refers to the place where one's daily life is centered. Typically, residing in a location for a considerable period establishes habitual residence.
2. Special Jurisdiction for Matrimonial Matters
However, the Private International Act separately regulates jurisdiction for divorce and other matrimonial cases under Article 56. If a situation meets one of the listed criteria, Korean courts can exercise jurisdiction:
① Both spouses are Korean nationals (Article 56.3)
Regardless of residence or habitual residence abroad, Korean courts have jurisdiction if both spouses are Korean citizens.
② Where a plaintiff who has habitual residence in the Republic of Korea as a national of the Republic of Korea files a lawsuit only for the purpose of terminating the marital relationship(Article 56.4)
Example: When a foreign spouse has fled or returned to their home country with unknown whereabouts.
③ One spouse's habitual residence is in Korea, and the couple's last shared habitual residence was Korea (Article 56.1)
Even if not Korean nationals, if one spouse currently resides in Korea for a significant period and it was the couple's last place of shared residence, Korean courts can assert jurisdiction.
Example: A foreign wife who returned home sues her Korean husband residing in Korea for divorce.
④ The plaintiff and all or some minor children have habitual residence in Korea (Article 56.2)
Example: A foreign national long-residing in Korea files for divorce against their spouse.
3. If Not Covered Under the Matrimonial Jurisdiction Provisions
While the revised Act covers many common international divorce scenarios, your specific situation may not fall under the special matrimonial jurisdiction provisions listed above.
In that case, the general provisions of Article 3 should be reviewed for potential applicability. Failing that, whether there is a substantive relationship with Korea under Article 2 could be assessed.
Even if your case does not squarely fit the listed criteria, consulting a divorce lawyer to potentially file in Korean courts may be worthwhile if divorcing through the Korean legal system provides meaningful benefits.
This is because:
① Your case could be recognized as falling under the Act's general jurisdiction provisions or having a substantive relationship to Korea.
e.g. If the major assets subject to property division are located in Korea.
② Under Article 9, if the defendant does not object to jurisdiction and actively responds to the complaint's substance at hearings, Korean courts can derive jurisdiction over the case.
"If the defendant was properly served the complaint and actively responded, such circumstances can positively contribute to recognizing Korean jurisdiction." (Supreme Court Decisions 2005mu884, 2017mu12552)
Example: Suppose a divorcing couple, both former Korean nationals who obtained U.S. citizenship, have a key asset in a Korea-based apartment requiring property division.
As they are not Korean nationals and did not have a final shared habitual residence in Korea, the special matrimonial provisions would not apply, nor the general provisions.
While jurisdiction would likely be contested, the court could derive jurisdiction under Article 2 by establishing the Korean apartment is a substantive asset sufficiently related to Korea to justify adjudicating the property division claim domestically.
4. Determining the Proper Korean Court
Once Korean jurisdiction is established under the Private International Act, the specific Korean court with venue is determined by the Family Litigation Act.
Article 22 states divorce petitions shall be filed in the following order of priority:
① The family court where both spouses have their ordinary place of residence
② If no shared residence, the family court of the last joint address where one spouse currently resides
③ If neither ① nor ②, then the family court of the defendant's residence if filed against one spouse, or plaintiff's residence if filed against both
④ If one spouse is deceased, the family court of the surviving spouse's residence
⑤ If both deceased, the family court of the last address of either spouse
*Ordinary Place of Residence is determined by a person's address, or previous address if no fixed address is known (Civil Procedure Act Article 3).
Even if initially filed in the wrong court, the case will be transferred rather than dismissed if Korean jurisdiction exists.
5. When the Seoul Family Court Has Jurisdiction
However, if the above criteria are not met because both spouses reside abroad, then under the Family Litigation Act Article 13, the Seoul Family Court where the Supreme Court is located shall have jurisdiction in cases where:
① Both spouses reside overseas
② An internationally married spouse has never entered Korea
6. Relevant Case Law: Applicability of Private International Act Article 2 to Family Matters
Supreme Court Decision 2019mu15425 (Oct 28, 2021)
Article 2 of the Private International Act applies to family matters as well. For Korean courts to have jurisdiction over a family case, there must be a substantive relationship between Korea and the parties or subject matter.
A "substantive relationship" means a sufficient connection to justify Korean courts exercising jurisdiction, considering principles of party fairness, proper administration of justice, efficiency and economy in allocating international jurisdiction.
Particularly in family matters, public values like maintaining the family system and social order must also be considered when assessing substantive relationships.
Amid the various interests in international jurisdiction, which needs prioritizing should be reasonably determined in each case by analyzing the substantive relationships. If the defendant was properly served but did not object to jurisdiction and actively responded on the merits, such circumstances can positively contribute to recognizing Korean jurisdiction.
Furthermore, under Article 3 (General Jurisdiction), Korean courts have jurisdiction over persons whose habitual residence is in Korea, including those without a habitual residence but whose place of residence is in Korea.
7. Divorce Proceedings in Korean Courts
The procedures for international divorces in Korean courts largely mirror typical Korean divorce litigation. More detailed information on divorce proceedings can be found at the link below.
Everything About Divorce Litigation
8. Consultation for International Divorce
Regardless of your location in Korea or abroad, you can consult directly with a divorce attorney specializing in international cases. If you require professional assistance, please schedule a consultation.
9. 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.
