‘De Facto Marriage’ under Korean Law

By klawguru, March 27, 2014

[Seoul Family Court: Decision of July 19, 2013, 2012Neuhap144, A “Property Division” Case]

I. Main Characters: Yin & Yang (Note: Fictitious names)

1. Mr. Yin: Korean, male, age 75, recent widower, very affluent.

2. Lady Yang: Korean, female, age 66, recent widow, not affluent.

II. Chronology: 2006-2012

1. September 2006: Mr. Yin and Lady Yang meet through a mutual friend. They get along well. In March 2007, the two start cohabitation (i.e., living together + sexual relations) at Mr. Yin’s “silvertown” apartment in Seoul. (Note: “Silvertown” is like a “retirement community.”)

2. 2007-2008: Mr. Yin and Lady Yang are happy living together. As hobby, they often like to go hiking. Their love life is good too. During this time, Lady Yang normally prepares all meals + cleans the house + does the laundry. Mr. Yin provides (every month) to Lady Yang a total of KRW 800,000 (about USD 750) to pay for general expenses and as pocket money.

3. April 2009: They have a severe quarrel. But, Mr. Yin and Lady Yang soon reconcile, and he gives her 1/2 ownership of his current apartment as gift. (Note: Mr. Yin owns several other property too.) They resume cohabitation.

4. October 2011: They again get into a severe argument and now start to sleep in separate rooms. From this point, the relationship quickly deteriorates.

5. January 2012: Lady Yang files a lawsuit with regard to 1/2 of the “silvertown” apartment (her share). A month later, she unilaterally ends cohabitation (i.e., abruptly leaves). Duration of cohabitation = March 2007 – February 2012 (almost 5 years).

III. What This Case Is About

1. Lady Yang files for “property division” (재산분할) against Mr. Yin, at the Seoul Family Court. Under Korean law, when a cohabitation is recognized to have been a de facto marriage, a de facto spouse is able to (upon dissolution) file for “property division” and/or “non-pecuniary damages” (i.e., psychological pain suffered). But, unlike in “de jure” (official) marriages, a de facto spouse is not entitled to inheritance (upon the death of a spouse). This is the one key difference.

2. What is de facto marriage: A de facto marriage (사실혼) is similar to common-law marriage in the West. In order to qualify as a de facto marriage, two requirements must be met:

a) Substantive “married life” + b) Intent to marry.

For instance, a newly-wed couple who have yet to officially register their marriage (혼인신고) would definitely be in a de facto marriage relationship.

3. What is NOT de facto marriage: 1) Mere Cohabitation: For instance, lodging (often) at the partner’s dwelling for a few days at a time + having sexual relations during that time, or 2) Conditional Cohabitation: For instance, cohabitating primarily for financial purposes such as relationship between “patriarchs and concubines” (부첩관계). Meanwhile, de facto marriage between same-sex couples is currently not recognized.

4. Lady Yang asks for KRW 2,162,735,802 (interest not included) as her share in “property division” based on 5 years of de facto marriage. The amount is a little over USD 2 million.

5. Mr. Yin denies their relationship as ever having been a de facto marriage. He argued it was mere cohabitation, not subject to any type of “property division.”

IV. Its Decision + Reasoning

1. In Korea, the family court handles divorce and other family-related cases. Juvenile cases too. In this case, the Seoul Family Court, partially found for the claimant (Lady Yang). They ultimately awarded her with KRW 410,000,000 (interest not included). This is a little over USD 380,000.

2. The Seoul Family Court did in fact see their 5 year cohabitation as de facto marriage. Below are the main reasons for the court reaching such a conclusion:

– Their cohabitation lasted almost 5 years.

– They went about calling each other as “honey” or “darling” (“여보” or “당신”).

– They each participated in each other’s family gatherings/events + Their families had meals together too.

– In the initial stages of cohabitation, Mr. Yin gave Lady Yang a ring, necklace, and earrings.

– Each were introduced as “father” or “grandmother” (respectively) to members of each other’s families.

– The couple had their photo (together) hanging on their apartment wall + Both of their names appeared on the front door.

– They introduced themselves as “husband/wife” to their neighbors.

– They frequently went on trips abroad as “husband/wife.”

– When Mr. Yin made a huge donation to his alma mater, Lady Yang attended the event in the role of his “wife.”

– Lady Yang frequently accompanied Mr. Yin on trips to his deceased family members’ grave/cemetery.

3. For the above reasons (taken together as a whole), the court held that the relationship constituted more than a “mere cohabitation.” A de facto marriage had been formed which lasted for almost 5 years. Therefore, the law regarding “property division” applies, and Lady Yang is entitled to her share from combined net worths of the two.

4. After investigation, the court concluded that Mr Yin’s net worth was about KRW 11,664,359,014 (a little less than USD 11 million). On the other hand, Lady Yang’s net worth was about KRW 180,170,000 (a little less than USD 170,000). The combined amount would be the property subject to “property division.” This was KRW 11,844,529,014 (USD 11.05 million).

5. Out of this KRW 11,844,529,014, the court saw 5% as belonging to Lady Yang, while 95 % as belonging to Mr. Yin. So, 5% was seen as her contribution. In Korea, there is no one formula, and even “peculiar property” (acquired before marriage or solely during marriage) is subject to division. The 5:95 ratio (in this case) was reached at in consideration of several factors including: a) Most of Mr. Yin’s property was acquired before the period of de facto marriage + b) Lady Yang was mostly in charge of all the housework + c) Every month, Mr. Yin provided Lady Yang with KRW 800,000 (to pay for general expenses and as pocket money) + d) Mr. Yin did make use of bank accounts under Lady Yang and some of her relatives names, etc.

6. Now, 5% of KRW 11,844,529,014 is roughly KRW 592,226,451 (USD 552,244). From this amount, Lady Yang’s net worth (KRW 180,170,000) would have to be subtracted. And, this would be KRW 412,056,450 (USD 384,238). The court rounded this down to KRW 410,000,000. Hence the figure. Summary below.

a) Mr. Yin’s Net Worth (KRW 11,664,359,014)

+

b) Lady Yang’s Net Worth (KRW 180,170,000)

=

c) Property Subject to “Property Division” (KRW 11,844,529,014).

And, 5% (her share) of that is KRW 592,226,451.

So, KRW 592,226,451 minus Lady Yang’s net worth (KRW 180,170,000) equals KRW 410,000,000 (roughly).

V. Afterword

In order for a cohabitating relationship not to be regarded as de facto marriage:

1. Draft a “cohabitation agreement” clearly specifying the non-existence of any intention to marry.

2. Avoid calling each other “honey” or “darling” in the presence of others. They could be called in as witnesses.

3. Try not to participate in each other’s family gatherings and social events.

4. Avoid exchanging (meaningful) tokens such as rings/earrings/necklaces, etc.

5. Above all, each party should not be seen as performing the social functions/duties a “de jure” (official) spouse would normally perform.

Thanks for reading!