KLAWGURU.COM

Korean Law Demystified!

Legal Marriage Is Not Enough: Court Rules Long-Separated Spouse Cannot Claim Pension Split

By ,

A Korean administrative court has ruled that a former spouse who was legally married but had been living entirely separately for years — with no genuine marital relationship — cannot claim a share of the other’s national pension. Formal legal status alone does not determine entitlement. Here are the key points.

Issue

Where a couple remained legally married for decades but lived separately and independently for a substantial period, does the formally married spouse qualify for a divided pension under the National Pension Act — or can the period of de facto separation be excluded from the pension calculation?

Facts

  • A and B maintained a legal marriage for several decades before divorcing by mutual agreement.
  • After the divorce, B applied to the National Pension Service in 2025 for a divided share of A’s old-age pension.
  • The National Pension Service recognized 238 months of the marriage as the qualifying period and decided to pay B half of A’s monthly pension — approximately ₩380,000 per month.
  • A challenged the decision, arguing that the marriage had effectively ended long before the divorce, and that when A first enrolled in the national pension scheme, the couple were already living separately. A contended that no substantive marital relationship existed during any part of the national pension enrollment period, making B’s entitlement to a divided pension legally unfounded.

Rule

  • Under the National Pension Act, a divorced spouse is entitled to a share of the other’s old-age pension for the portion of the pension enrollment period that overlaps with the marriage.
  • However, the implementing regulations exclude periods during which the marriage had effectively broken down — such as periods of separation or abandonment. The court found that the list of excluded circumstances in the regulations is illustrative, not exhaustive.
  • The substantive test is whether a real marital relationship existed during the relevant period — assessed by looking at whether the couple maintained ongoing contact, shared domestic or childcare responsibilities, provided economic support for the family, or had reached any explicit or implicit agreement to end the marriage.

Court Decision

  • The Seoul Administrative Court (Administrative Division 12, Presiding Judge Kang Jae-won) ruled in A’s favor on April 23, 2026, ordering the National Pension Service’s decision to be cancelled.
  • The court found that A and B had been living at separate addresses for a long time and had each pursued independent economic lives. On those facts, the substantive marital relationship had been severed well before A enrolled in the national pension scheme.
  • Because no genuine marital relationship existed during A’s entire pension enrollment period, B had made no contribution whatsoever to the formation of A’s pension entitlement — the very basis on which divided pension rights exist.
  • The court held that periods of separation or abandonment that result in a genuine breakdown of the marital relationship must be excluded from the pension calculation, even if they do not fall within the specific categories enumerated in the implementing regulations.
  • The National Pension Service’s decision to award B a divided pension was therefore unlawful.

Key Takeaways

  • Legal marital status is a necessary but not sufficient condition for divided pension entitlement. The marriage must also have been substantively real during the pension enrollment period.
  • The test for whether a marital relationship was genuine during separation involves multiple factors: ongoing contact, shared family responsibilities, economic interdependence, and the presence or absence of any agreement — express or implied — to end the relationship.
  • The regulatory list of excluded periods is not exhaustive. Courts will exclude any period during which the marital relationship had effectively ended in substance, even if that situation is not specifically named in the regulations.
  • Where a couple was already living entirely separately when the pension enrollment period began, and remained so throughout, the non-contributing spouse may have no valid claim to a divided pension at all.

Why This Matters

This ruling has significant implications for how divided pension claims are assessed in Korea, particularly in marriages that broke down in practice long before a formal divorce was obtained. For practitioners advising clients on divorce and pension rights, it establishes that the substantive quality of the marriage during the enrollment period — not just its legal duration — is the operative legal standard. For the National Pension Service, it signals that administrative decisions on divided pensions must look beyond registered marital status and assess the real nature of the relationship. And for separated-but-not-yet-divorced couples, the decision is a reminder that legal inertia in formalizing a separation can have pension consequences for both parties.

Article: https://www.lawtimes.co.kr/news/articleView.html?idxno=220624

Leave a comment