Mr. and Mrs. Yoon have been married for over 10 years. They have a daughter in elementary school. One fateful day, Mrs. Yoon stumbles upon some of Mr. Yoon’s cell phone text messages. They (shockingly) reveal that Mr. Yoon has been cheating on her for quite some time. He seems to have been seeing a female co-worker. The text messages include intimate message such as: “Darling, I love you,” “I miss you so much,” “Sweet dreams,” etc. Mrs. Yoon is absolutely devastated and wants a divorce ASAP. But, she doesn’t want to go so far as to have her husband prosecuted for “Adultery” because: a) She’s not entirely certain he’s actually had sexual relations with the co-worker; b) Even if so, she’s not so confident in catching him red-handed (as “Adultery” normally requires). Mrs. Yoon simply wants a divorce, damages for psychological pain & suffering, an equitable share of the property, custody of her child, and child support. What can she expect under Korean law?
I. Can Mrs. Yoon Get a Divorce?
In any Korean divorce case, this is initially the most important question.
The “best” scenario: If Mr. Yoon also wants out, and they can both agree to all terms of the divorce, there is no problem. After a mandatory “reconsideration period” of 3 months, both parties can be on their merry way. This is called “divorce by agreement” (협의 이혼).
“Divorce by agreement” would be ideal. Most times, however, one spouse has to seek divorce unilaterally. This can be either because the other spouse wants to stay married or because the exact terms of the divorce cannot be agreed upon. Let’s say for the sake of argument, Mr. Yoon denies everything and does not want a divorce. Then, Mrs. Yoon is left with the option of seeking / filing for divorce unilaterally. This is called “judicial divorce” (재판상 이혼).
With “judicial divorce,” the rule is that the other spouse (i.e., the spouse not wanting a divorce) has to be mainly at fault for (ruining the marriage). There is, however, a rare exception where even an at-fault spouse can file for “judicial divorce.” If the spouse not-at-fault is unwilling to divorce simply in retaliation or out of spite (where the marriage is already very much in shambles, and no efforts to salvage it are being made).
DID YOU KNOW? In Korea, divorce cases are handled in a family court (가정법원). In principle, “conciliation” (조정) is a mandatory preliminary procedure, but not all cases are resolved so neatly. Once “conciliation” (and/or “divorce by agreement”) is rejected by both parties or deemed ineffective, a family court officer/investigator (가사조사관) will first interview each spouse. The officer/investigator will then write up a report for the judge. Judges tend to place much weight on these (impartial) reports, so the parties should try to plead their case well/amply to these officers/investigators. Especially people who have very little by way of actual evidence.
Article 840 of the Civil Act (민법) outlines 6 distinct causes for “judicial divorce.” This is an exhaustive list, meaning your claim for divorce has to be grounded upon at least one of these 6 causes. (See slide at the very top.)
In Mrs. Yoon’s case, her cause would probably have to be grounded upon cause #1: “If the other spouse has committed an act of unchastity.” But, what is “unchastity?” “Unchastity” (부정행위) is a much broader (all-encompassing) concept than “Adultery” (간통, 상간) under criminal law. While the elements of “Adultery” can only be satisfied by extramarital (straight) sex, “unchastity” can be satisfied much easily, even in the absence of extramarital sexual relations. “Unchastity” has more to do with a breach of marital obligation under civil law. So, being romantically involved (even w/o evidence of extramarital sex) with someone other than your spouse would probably suffice. Flirting with people from time to time probably wouldn’t.
DID YOU KNOW? Cause #1 only covers “unchaste acts” which took place during marriage. This means “unchaste acts” which took place during engagement period, for instance, do not fall under cause #1 (Supreme Court Decision of September 13, 1991, 91므85,92).
Out of the 6 causes, cause #6 (i.e., “serious cause for making it difficult to continue the marriage”) is by far the most ambiguous/controversial. It’s almost like a “catch-all” cause, if you will. The courts have recognized cause #6 in instances where a spouse now suffers from an incurable mental disorder or sexual dysfunction, etc. Or, a spouse continually refuses sex for no apparent reason, etc. “Domestic violence” could also fall under cause #6 (Supreme Court Decision of December 23, 2005, 2005므1689).
Back to Mrs. Yoon’s case. What’s really tricky is that a couple of (compromising) text messages “hinting” at infidelity do not necessarily guarantee a divorce. Yes, such messages would greatly help one get a (judicial) divorce, but it’s not guaranteed 100%. On top of saving/keeping a screenshot of the text messages, Mrs. Yoon could also try to obtain:
1) Cell Phone Records: She could ask for a court order to compel Mr. Yoon’s cell phone records (사실조회). Telecommunication companies don’t provide material regarding the actual content of cell phone calls/texts, but at least she can find out how frequently or for how long Mr. Yoon has been talking/texting the female co-worker. FYI, a separate request should be filed regarding the female co-worker because telecommunication companies only offer information regarding their calls made, not received. For Mrs. Yoon, it would help if Mr. Yoon made the calls frequently and especially at night. Her lawyer should perhaps try to convey that: “Out of all the calls he’s made, an overwhelming percentage were made to that female co-worker.” The fact that they were made frequently and at night would help make the case that the calls cannot have been all work-related.
2) Credit Card Expenditure Information: It would also help if Mrs. Yoon can get a hold of Mr. Yoon’s credit card spending information. If his credit card was frequently used in restaurants near or around the female co-worker’s home/residence, that could strongly be indicative of infidelity. Especially if the paid amount would normally be for around two people (e.g., KRW 15,000 – 20,000).
What about private investigators? In Korea, suspecting wives/husbands sometimes like to employ private investigators (심부름센터) to have their cheating spouse followed. This is not really recommended because not only is it likely illegal but also the investigators themselves sometimes turn out to be unscrupulous. For example, once they have some evidence (e.g., photos) of infidelity, they might approach both parties and sell the photos to the higher bidder. Worse yet, they might try to sell (some) to both parties! So, be careful.
Keep in mind one has to always be careful in making accusations of “unchastity” because if it backfires, the accuser can instead be accused as having “delusions of infidelity.” When gathering evidence, it’s not a good idea to employ illegal/unlawful methods (e.g., installing real-time tracking devices on your spouse…).
Still, Mrs. Yoon should not wait too long. A “judicial divorce” grounded on “unchastity” (i.e., cause #1) must be filed within 6 months of learning of the act or within 2 years from the date of the (last) act. At the same time, if the “unchaste act” was forgiven or consented to, divorce will not be granted.
“A perfect crime is exactly the same as a perfect marriage. Their being perfect depends on your not being caught.” – Alfred Hitchcock
II. Damages for Psychological Pain & Suffering (위자료)
Mrs. Yoon could also sue her husband for psychological pain & suffering (under tort law). If her claim for “unchastity” is indeed recognized by the court, she could probably receive about 30 million won (about USD 28,000). “Judicial divorce” grounded on “unchastity” is a cause under which damages is frequently/easily recognized. This is because the “unchaste spouse” is (mostly) at fault for having ruined the marriage. But, if Mrs. Yoon was also somewhat at fault for ruining the marriage, her amount for damages would be reduced accordingly (i.e., comparative fault). In cases where both spouses were somewhat equally at fault, there might be no damages awarded at all. Generally speaking, the amount tends to go up if there was verbal/physical abuse or violence involved.
I mentioned earlier that a “judicial divorce” grounded on “unchastity” (i.e., cause #1) must be filed within 6 months of learning of the act or within 2 years from the date of the (last) act. But for the purposes of suing for psychological pain & suffering, even very old “unchaste acts” should be included in the arguments because they might increase the amount awarded for damages. They can help prove a pattern of bad behavior. I’ve heard people who cheat tend to cheat again and sometimes repeatedly. So, don’t just neglect to mention (to your lawyer) old “unchaste acts” thinking they have no bearing to the present case.
At the same time, Mrs. Yoon could also sue the female co-worker for psychological pain & suffering. Especially if the female co-worker knew full well Mr. Yoon was married (which is likely). But, the amount the female co-worker will have to pay is likely to be lower than the amount Mr. Yoon will have to pay. (Maybe, she could end up paying around 5 million won.) ADDED: The Supreme Court of Korea has recently ruled that the “3rd party” engaged in an “unchaste act” is not liable for damages if the marriage was already in shambles. For instance, if Mr. and Mrs. Yoon’s marriage was in shambles (due to other reasons) well before the female co-worker started fooling around with Mr. Yoon, the female co-worker would not be liable. Some “causation” seems to be required.
It is imperative that a divorce lawyer first tells his/her (potential) client a fairly accurate estimate of how much he/she is likely to receive by way of damages for psychological pain & suffering. This is because if the figure is too low (e.g., less than 10 million won) and the couple don’t have much by way of assets/property, it might not be in the (potential) client’s best interest to hire an attorney. Attorney’s fees can run up to 3-10 million won (up front) + contingency fees (e.g., 10-15% of the assets/property received). So, it’s entirely possible that even a successful client might not end up with much money (left) after attorney’s fees. It’s not mandatory that a person hires attorney in order to get a divorce. I’d say an attorney is beneficial when: 1) There is a lot of money/property involved or 2) The couple can’t even stand to talk to each other.
In “judicial divorce” cases, the average amount awarded as damages for psychological pain & suffering is said to be about 30 million won. There are cases where people receive even 50 million won.
III. Division of Property (재산분할)
If her claim for divorce is a valid one, Mrs. Yoon would also be entitled to a claim for division of “marital property” (공동재산). In other words, she’d be entitled to ask for her equitable share of “marital property.”
Unlike “peculiar property” (특유재산) which is property that belongs solely/entirely to one spouse, “marital property” is property which each spouse jointly has some claim to (or ownership of). In principle, money/property either spouse has inherited or acquired as gift is “peculiar property.” Property owned prior to marriage is also “peculiar property.” But if the other spouse had some contribution in the maintenance of such property, parts of that “peculiar property” becomes “marital property” and is also subject to property division.
So, the most important questions are:
1) What constitutes “marital property?” (This is important because only “marital property” is subject to division.)
2) Once “marital property” has been determined, how much is each spouse entitled to? (It’s not always 50:50.)
“Marital property” is simply property both spouses had some contribution in making or managing (during marriage). “Contribution” is not necessarily restricted to monetary contribution; it also includes efforts such as the labor of a stay-at-home wife. In Korea, future retirement packages may also be subject to division.
In determining the division ratio, the court will take into account many factors such as: 1) who actually contributed how much in making/maintaining the property + 2) the current economic/financial status of each spouse, etc. The overall aim of “division of property” is to equitably determine what belongs to whom + to help support the party more financially in need.
Who holds title is irrelevant in determining “marital property.” In reality, however, it’s advantageous to be the title holder because it is the other party who will have to make efforts to “retrieve” parts of that property. Usually, the title holder ends up paying cash to the other party (as opposed to co-ownership). Unlike damages for psychological pain & suffering (where both parties have to pay taxes), the payer need not pay taxes, while the recipient pays only a registration tax (등록세).
The court will make its own efforts to best investigate the exact amount constituting “marital property.” Unlike typical/other civil litigation, the court is not bound by the arguments/evidence presented by each party. Meanwhile, the exact amount of “marital property” is decided upon “closing of arguments” of the divorce proceedings (i.e., 사실심 변론종결일). This is important because (judicial) divorce proceedings can take up to 1 – 3 years. There can be change in property even during that time.
For Mrs. Yoon who’s been married for at least 10 years, she would be entitled close to 50% of the “marital property.” If there were any “peculiar property” owned by Mr. Yoon, and Mrs. Yoon contributed in maintaining such property, she could be entitled to maybe 10% of that. (Usually 1% per year.) Generally speaking, the longer the duration of the marriage and/or the smaller the aggregate “marital property,” the higher the percentage a housewife will be awarded.
FYI, even at-fault spouses have the right to claim for “division of property.” Unlike “damages for psychological pain & suffering,” “division of property” has little to do with who was at fault. It’s simply about what belong to whom. Even debt is subject to “division of property.” Just because a spouse is not at any fault does not mean he/she is exempt from paying off marital debt.
“De facto marriages” are also subject to the same “division of property” laws.
TRUE OR FALSE? “There is such thing as a ‘prenuptial agreement’ under Korean law.” Click here to find out.
It was recently reported here in Korea that, there are (for the first time) more divorce cases involving “baby boomers” aka “sunset divorces” (i.e., couples who’ve been married for at least 20 years) than divorce cases involving “newlyweds” (i.e., couples who’ve been married for less than 4 years). Personally, I don’t necessarily think divorce is always a “bad thing” because walking away from a rotten situation is sometimes necessary.
IV. Child Custody (친권, 양육권)
The courts normally take into account the child’s sex and age, the intent of the spouses to exercise custody, each spouses’ economic/financial situations, how close each spouse is to the child, and the opinion of the child him/herself too. If the child is at least 15, it’s mandatory the court listen to his/her opinion. In reality, it’s also important who’s actually been taking care of the child thus far (and during trial).
Just because the child is a daughter does not necessarily guarantee Mrs. Yoon will be entitled to child custody. However, if she has been taking care of the daughter thus far, the result could be very much favorable to Mrs. Yoon.
V. Child Support (양육비)
The two most important factors in determining “aggregate” child support are: 1) The combined income of the spouses and 2) The age of the child.
Above is a chart from the Seoul Family Court. It applies to divorce between “city dwellers.” The figures (in bold) are per month for one child. FYI, these are standard aggregate figures (meaning the figures are what the spouses together are normally responsible for).
Once a figure is chosen, the court will then decide in what ratio that burden is to be shared (i.e., how much exactly each party is to pay). It’s not always 50:50. But, even “broke” spouses have to pay child support.
Mrs. Yoon will be able to ask for child support as well.
Preliminary injunctive measures can be considered if necessary. For instance, if Mr. Yoon is not paying for anything (in child support) during trial.
VI. Visitation Rights (면접교섭권)
If Mrs. Yoon successfully gets custody, Mr. Yoon would, in return, be entitled to visitation rights. It could look something like this:
1) Every month, 1st and 3rd Saturday from 11:00 to the next day (Sunday) 17:00.
2) One week during (both) summer and winter breaks.
3) Lunar New Year’s.
4) Other days agreed upon by the parties.
5) Mr. Yoon is to pick up / drop off the child from/at Mrs. Yoon’s residence. Mrs. Yoon is to cooperate.
Preliminary injunctive measures can be considered if necessary. For instance, if Mrs. Yoon is not allowing Mr. Yoon is see his daughter at all (during trial).
Once “judicial divorce” is granted by the court, the divorce is effective then and there. Each party is free to see anyone he/she wishes.
Thanks for reading!
[ADDED] I also recommend this post — https://klawguru.com/2016/12/02/i-want-to-sue-my-wifes-lover-all-i-know-is-his-cellphone-number/