Marriage Migrant (F-6 Visa) Residence Status in South Korea
The Big Picture
1. Overview of F-6 Status
Marriage migrant (F-6) status is a long-term residence status granted to a foreigner who has married a Korean national, or to a foreigner connected with such a marriage (Enforcement Decree of the Immigration Act, Article 12, [Attached Table 1-2], item 27). F-6 status is highly advantageous compared with other statuses in that it carries no restriction on employment activity, and it can also serve as a pathway to the acquisition of nationality (naturalization).
2. Types of F-6 Status (Sub-items)
F-6 status is broadly divided into three types.
A. F-6-1: Spouse of a national (item (a)). A foreigner lawfully married to a Korean national — the most common type.
B. F-6-2: Child-rearing parent (item (b)). A father or mother who is raising a child born of a marital relationship (including a common-law marriage) with a Korean national.
C. F-6-3: Person whose marriage has ended (item (c)). A person who, while staying in Korea in a married state with the spouse who is a national, can no longer maintain a normal marital relationship owing to the death or disappearance of that spouse, or to other grounds for which the person is not responsible, and whom the Minister of Justice recognizes.
3. F-6-1 (Spouse of a National): Acquisition Procedure and Requirements
A. General rule: enter after a visa is issued at an overseas mission. To acquire F-6-1 status, a foreigner must, in principle, obtain a visa for the purpose of marital cohabitation at the Korean overseas mission in the home country or country of residence and then enter Korea (Enforcement Rules of the Immigration Act, Article 9-4(1)). In this case, the inviter (the Korean spouse) becomes the identity guarantor of the invitee (the foreign spouse).
Note: Where a person enters Korea on another status such as a short-term visit (C-3) and then applies for a change to F-6, the application is likely to be refused on the ground that it may be misused as a means of circumventing the strict screening procedure at the overseas mission (Daegu District Court, Jan. 24, 2024, 2023gudan10872).
B. Screening requirements (Enforcement Rules, Article 9-5(1))
To determine the genuineness of the marriage and the likelihood of a normal married life, the head of the overseas mission screens and confirms the following matters.
1) Basic screening items:
| Item | Content |
|---|---|
| Course of the relationship and intent to marry | Whether there was a substantive relationship; confirmation of a genuine intent to marry |
| Whether the marriage is validly formed | Lawful formation of marriage under the laws of the parties’ countries |
| Invitation history | Whether another spouse was invited within the past 5 years |
| Income requirement | The inviter’s annual income must be at or above the standard in the Minister of Justice public notice (at or above the median income for a two-person household) |
| Health status and criminal record | Whether mutually provided |
| Korean-language ability | Whether the invitee can use Korean at or above a basic level |
| Housing | Whether a normal living space in which the couple can continuously reside together has been secured (a gosiwon, motel, vinyl greenhouse, etc. are not accepted) |
| Time since acquiring naturalization/permanent residence | Whether 3 years have passed since the inviter acquired marriage-based naturalization or marriage-based permanent residence (F-5-2) |
2) Screening relating to the inviter’s criminal record (Article 9-5(1), subparagraphs 9–12):
- Record of domestic violence offenses: whether 10 years have passed since the disposition ended or since completion of an actual term of imprisonment without labor or heavier, etc.
- Record of child/youth sexual offenses: whether 10 years have passed since the sentence became final.
- Record of sexual violence offenses, specified violent offenses, or homicide: whether 10 years have passed since completion of an actual term of imprisonment without labor or heavier.
- Record of false marriage reporting (Criminal Act, Article 228): whether 5 years have passed since the sentence became final.
3) Recent practice on the income requirement. If the income standard publicly notified each year by the Minister of Justice is not met, visa issuance may be refused. The courts have held that a visa refusal on the ground of failure to meet the income requirement does not amount to an exceeding or abuse of discretion (Seoul High Court, Apr. 9, 2025, 2024nu68219; Seoul Administrative Court, Nov. 13, 2024, 2023gudan6420).
C. Requirement to complete the International Marriage Guidance Program
Where the requirements publicly notified by the Minister of Justice apply, the inviter (the Korean spouse) must attach a certificate of having completed the International Marriage Guidance Program, or enter the completion number.
4. F-6-1 Required Documents
A. Documents submitted by the invitee (the foreigner):
- Visa issuance application form.
- Copy of passport.
- Marriage relation certificate (proof of marriage formation under the laws of the parties’ countries).
- Statement on the course of the relationship.
- Documents proving Korean-language ability (where applicable).
- Health examination certificate and criminal record certificate.
B. Documents submitted by the inviter (the Korean spouse):
- Letter of invitation for the foreign spouse.
- Letter of identity guarantee.
- Documents proving the income requirement (withholding receipt for earned income, documents confirming business income, etc.).
- Documents confirming housing (lease agreement, certified copy of the register, etc.).
- Certificate of completion of the International Marriage Guidance Program (where applicable).
- Criminal record certificate.
- Marriage relation certificate (domestic).
Practical note: Because the genuineness of a marriage rests on the intimate, subjective intent of the parties and objective, physical evidence is rare, it is important to prepare as much material as possible proving the relationship — photographs together, call records, remittance records, records of mutual visits, and the like (see Seoul Administrative Court, Apr. 11, 2024, 2023gudan62413).
5. F-6-3 (Marriage Ended): Requirements and Practice
A. Legal requirement and its interpretation. On the meaning of the core requirement of F-6-3 status — “a person who can no longer maintain a normal marital relationship owing to grounds for which the person is not responsible” — the Supreme Court held as follows:
A person who can no longer maintain a normal marital relationship owing to grounds for which the person is not primarily responsible — that is, a case in which the primary fault for the breakdown of the marriage lies with the spouse who is a national. (Supreme Court, July 4, 2019, 2018du66869)
In other words, the foreign spouse is not required to be wholly without fault; it is enough that the primary fault lies with the Korean spouse. The purpose is to prevent the foreign spouse from becoming passive in pursuing divorce proceedings, or the Korean spouse from exploiting this (Supreme Court, July 4, 2019, 2018du66869).
B. Burden of proof. In a suit to revoke a refusal of F-6-3 status, the burden of proving the grounds for the disposition lies with the defendant administrative agency. That is, the agency must prove that “the primary fault for the breakdown of the marriage does not lie with the spouse who is a national” (Supreme Court, July 4, 2019, 2018du66869). That said, in practice it is important for the foreign spouse, too, to actively assert and prove the factors favorable to him or her.
C. Documents to prepare:
- Documents proving the fact of death or disappearance (where applicable).
- Documents proving that the marital relationship ended without fault on the person’s part: divorce judgment or mediation protocol (confirming the description of fault); documents relating to domestic-violence victimization (complaint, medical certificate, restraining order, etc.); police report records; materials proving the spouse’s adultery, desertion, assault, etc.; written statements, witness confirmations, and the like.
D. Recent case trends.
1) Cases the plaintiff lost (insufficient proof of fault): where the mediation terms alone made it hard to confirm the Korean spouse’s fault, and the record instead stated that the foreign spouse had kept demanding that a house be provided in Vietnam, causing feelings to rupture (Daejeon District Court, Sept. 3, 2015, 2015guhap101459); and where a recommendation-of-settlement decision alone did not reveal the content of the Korean spouse’s fault (Jeonju District Court, May 12, 2016, 2015guhap865).
2) A case the plaintiff won: where the primary fault for the breakdown of the marriage was found to lie with the spouse who is a national (Busan District Court, May 30, 2024, 2023guhap24242).
6. F-6-2 (Child-Rearing Parent): Requirements
The person must be actually raising a child born of a marital relationship (including a common-law marriage) with a Korean national. However, where there is a ground for annulment of marriage under the Civil Act, such as bigamy, the requirement may not be satisfied (Uijeongbu District Court, Apr. 17, 2024, 2023gudan5729).
7. Practice on Extending the Period of Stay
A. Legal character of an extension. Permission to extend the period of stay is a status-conferring disposition that grants the applicant the authority to stay beyond the ceiling of the period of stay for the relevant status; the administrative agency holds broad discretion to decide whether to grant it, taking into account the applicant’s eligibility, the purpose of stay, the effect on the public interest, and the like (Suwon District Court, Oct. 15, 2024, 2024gudan10403).
B. Screening the genuineness of the marriage. A field investigation into the genuineness of the marriage is conducted at the extension stage as well. If the marriage is found not to be genuine, the extension is refused (Suwon District Court, Aug. 30, 2024, 2024gudan10380; Suwon District Court, Oct. 15, 2024, 2024gudan12027).
C. Points to note when the spouse changes. Where a person divorces, remarries a new Korean spouse, and applies to extend the F-6 period of stay, this is in substance no different from permitting a change of status, so broader discretion is recognized in the administrative agency (Suwon District Court, June 21, 2024, 2023gudan14736).
D. Special rule for domestic-violence victims. Where, on grounds of domestic violence, a court trial, an investigation by an investigative agency, or another rights-remedy procedure under statute is ongoing, the Minister of Justice may permit an extension of the period of stay until the relevant procedure concludes (Immigration Act, Article 25-2(1), subparagraph 1).
8. Points to Note After Acquiring F-6
A. Freedom of employment activity. A holder of F-6 status is not subject to restrictions on employment activity. However, for occupations requiring a particular qualification under domestic statutes, that qualification must be held.
B. The naturalization (nationality acquisition) pathway. A foreigner staying on F-6-1 status may apply for simplified naturalization upon satisfying the following requirements: having maintained a domicile in Korea continuously for 2 years or more while married; or 3 years having passed since the marriage and having had a domicile in Korea continuously for 1 year or more while married. However, because permission for naturalization is a discretionary act of the Minister of Justice, even where the requirements are met, it may be refused if the marriage is not genuine or the person’s record of stay in Korea is poor (Seoul Administrative Court, Apr. 25, 2024, 2023guhap74246; Supreme Court, Oct. 28, 2010, 2010du6496).
C. Sham marriage strictly prohibited. Where an F-6 visa is acquired through a sham marriage for another purpose such as employment, the person may face criminal punishment for offenses such as false entry in official electromagnetic records, uttering of falsely entered official electromagnetic records, and violation of the Immigration Act (Daegu District Court, Seobu Branch, July 19, 2023, 2021godan2860-1; Suwon District Court, Ansan Branch, Sept. 11, 2025, 2025godan1769). Moreover, if a sham marriage is discovered, the residence status is canceled and the person becomes subject to forced removal.
D. Prohibition on forging the alien registration card. Forging an alien registration card while staying on an F-6 visa is punishable under Article 225 of the Criminal Act (forgery of an official document) (Daejeon District Court, Cheonan Branch, Oct. 16, 2024, 2023godan3251).
E. Observing the period of stay. An extension must be obtained before the period of stay expires; unlawful overstay can lead to disadvantages such as forced removal and an entry ban.
F. Reapplication after a visa refusal. Where visa issuance is refused, a reapplication may be made after 6 months have passed from the date of refusal. However, where there is an urgent reason to enter Korea, such as childbirth, an application is possible even before 6 months (Enforcement Rules, Article 9-5(3)).
9. Summary of Key Practical Points
| Category | Key content |
|---|---|
| Genuineness of the marriage | The most important screening factor. Prepare ample evidence of the relationship |
| Income requirement | The inviter’s (Korean spouse’s) annual income must be at or above the notified standard |
| Housing | A gosiwon, motel, etc. are not accepted; a normal living space is required |
| F-6-3 fault | “Sole” fault is not required; it is enough that the “primary” fault lies with the Korean spouse |
| Burden of proof | In a suit to revoke an F-6-3 refusal, the burden lies with the administrative agency |
| Sham marriage | Risk of criminal punishment + forced removal |
| Naturalization | A discretionary act; meeting the requirements does not by itself guarantee permission |
The foregoing sets out the general practice on the F-6 marriage migrant residence status. Because the applicable legal principles and the documents to prepare may differ depending on the specific facts, a careful review of the concrete facts of each individual case is recommended.
F-6 Visa: Grounds for Failing the “Genuineness of Marriage” Screening, and a Practical Guide to Reapplication
1. The Legal Significance of the “Genuineness of Marriage” Screening
The reason the Immigration Act and its subordinate statutes require, for the issuance of a visa for marital cohabitation, not only the existence of a marriage but also its genuineness and the likelihood of a normal married life, is to prevent international marriage from being used as an easy means of obtaining a visa rather than for the purpose of leading a normal conjugal community life, and to prevent the marriages by deception and the domestic violence against foreign spouses that have occurred in international marriages in the past (Seoul Administrative Court, Sept. 13, 2024, 2024gudan4100; Seoul High Court, Dec. 26, 2024, 2024nu41344).
In particular, because marriage migrant (F-6) status is easier than other statuses in terms of domestic employment and nationality acquisition, stricter screening is called for in visa issuance so that it is not abused as a device for staying in Korea without any intent to marry (Seoul Administrative Court, Apr. 11, 2024, 2023gudan62413; Seoul High Court, Dec. 26, 2024, 2024nu41344). The difficulty of the screening is compounded by the fact that the genuineness of a marriage rests largely on the intimate, subjective intent of the parties, so that objective, physical evidence is rare and a conclusion is hard to reach on that alone.
2. Principal Grounds for Failing the Genuineness Screening
A. Absence of the substance of a conjugal community life
This is the most central ground for failure. The courts find an absence of the substance of conjugal community life by weighing circumstances such as the following.
1) Cohabitation not confirmed: where the foreigner’s registered place of stay and the Korean spouse’s resident-registration address are recorded as identical, but it is hard to find that they actually lived together as a married couple (Seoul High Court, Feb. 11, 2022, 2021nu46621); and where, at the time of the field investigation, the plaintiff and the spouse were not living together in one home (Suwon District Court, June 25, 2021, 2020gudan9405).
2) Marked lack of contact and exchange: where analysis of call records showed an extremely small number of calls with the spouse and no call records at all with the spouse’s family (Incheon District Court, Aug. 24, 2021, 2021gudan50335). In that case, the plaintiff made a total of 1,715 calls over six months, but only around 40 were with the spouse — and more than 30 of those were after the application was filed.
3) Absence of shared finances: where no situation of shared finances between the couple was confirmed (Seoul High Court, Feb. 11, 2022, 2021nu46621); and failure to meet the means-of-livelihood requirement (Incheon District Court, Oct. 12, 2021, 2021gudan50861).
B. Lack of clarity in the course of the relationship and the intent to marry
1) Unusual duration or manner of the relationship: where the parties’ statements about the course of the relationship were inconsistent or lacked specificity.
2) Absence of an intent to marry: where the person did not personally affix the seal to the marriage report with an intent to marry — for instance, where an employee of a marriage-information company affixed the person’s seal to the marriage report without consent; and where the parties never cohabited after the marriage report and did not even exchange contact (Jeonju District Court, Aug. 11, 2022, 2021guhap1234).
C. A history of repeated marriage and divorce
- Where three marriages were repeated within a short period, each lasting only about a year (Suwon District Court, Feb. 3, 2023, 2022gudan9010).
- Where there was a history of no substance of conjugal community life — such as changing one’s place of stay alone during a marriage with a previous spouse.
- Where the person had previously obtained an extension of the period of stay on the ground of a change of spouse, stricter screening is applied to the genuineness of the marriage with the new spouse.
D. Retroactive denial of genuineness after the spouse’s death
Even where the spouse has died, an extension may be refused on the ground that the genuineness of the marriage before death, and whether the marriage was continuing, are unclear (Seoul Administrative Court, Oct. 13, 2023, 2023gudan56005). The immigration statutes do not grant F-6 status as a matter of course merely because the spouse who is a national has died; F-6-3 status is granted only where a ground such as the spouse’s death or disappearance arose while the person was staying in Korea in a married state.
E. Marriage not formed under the laws of the parties’ countries
Where a marriage was not formed under the laws of the parties’ countries (Enforcement Rules, Article 9-5(1), subparagraph 2; Jeonju District Court, Feb. 9, 2023, 2022guhap2760).
F. Failure to meet the income requirement
Even where the genuineness of the marriage is recognized, visa issuance may be refused if the inviter’s income falls below the Minister of Justice public-notice standard, and this does not amount to an exceeding or abuse of discretion (Seoul Administrative Court, Nov. 13, 2024, 2023gudan6420; Seoul High Court, July 13, 2022, 2021nu67048). The income requirement is an important criterion for judging whether the foreigner can settle and live as a sound citizen while building a stable married life in Korea.
G. No housing secured
A place that generally cannot be regarded as somewhere a couple can continuously reside together — a gosiwon, motel, vinyl greenhouse, and the like — is not regarded as a normal living space (Enforcement Rules, Article 9-5(1), subparagraph 7).
H. The inviter’s criminal record
Where the inviter has a record of domestic violence offenses, child/youth sexual offenses, sexual violence offenses, specified violent offenses, homicide, false marriage reporting, and the like, visa issuance is refused unless the period set in each subparagraph has elapsed (Enforcement Rules, Article 9-5(1), subparagraphs 9–12; Seoul Administrative Court, Sept. 13, 2024, 2024gudan4100).
3. “Urgent Circumstances” Permitting Reapplication Before 6 Months
The proviso to Article 9-5(3) of the Enforcement Rules provides that, “where there is childbirth or another urgent reason to enter Korea,” a reapplication may be made even before 6 months have elapsed.
A. “Childbirth”: where the person is pregnant or childbirth is imminent; and where, after childbirth, there is a need to stay in Korea together with the Korean spouse to raise the newborn.
B. “Another urgent reason to enter Korea.” There is no express statutory definition, but in practice the following circumstances may qualify: where nursing care is needed due to the Korean spouse’s serious illness, accident, or the like; where attendance at a funeral is needed due to the death of the Korean spouse or a member of the spouse’s family; and other circumstances where immediate entry is unavoidable from a humanitarian standpoint.
Note: “Urgent circumstances” are interpreted strictly, so the mere wish to lead married life is unlikely to be recognized.
4. Additional Evidence to Prepare for Reapplication
A. Evidence proving the genuineness of the marriage (the core)
Because the genuineness of a marriage rests on the intimate, subjective intent of the parties and objective, physical evidence is rare (Seoul Administrative Court, Apr. 11, 2024, 2023gudan62413), the following materials should be gathered as fully as possible.
1) Evidence proving the relationship:
| Type of material | Specific content |
|---|---|
| Photographs together | Photographs with temporal continuity (dates, trips, family events, etc.) |
| Call and message records | KakaoTalk, text messages, international call records (frequency and content matter) |
| Records of mutual visits | Airline tickets, entry/departure records, accommodation receipts |
| Remittance records | Records of money transfers between the parties |
| Social-media exchange records | Content of exchanges on public social media |
2) Evidence proving conjugal community life: documents confirming cohabitation (same address, utility-payment records, delivery-order records, etc.); evidence of shared finances (a joint-name account, records of transferring living expenses to each other); evidence of forming a family relationship (photographs of exchanges with the spouse’s family, records of participation in family events); and third-party confirmations from neighbors, acquaintances, and the spouse’s family (see the case in which statements by the spouse’s older brother and his wife contributed to recognizing the genuineness of the marriage (Seoul High Court, June 24, 2022, 2021nu58273)).
3) Evidence proving efforts to prepare for and sustain the marriage: records of expenditure in preparing for the marriage (gift exchange, household goods, wedding-related); certificates of Korean-language study (academy enrollment records, Korean-proficiency test scores, etc.); and materials showing efforts to adapt to Korean culture and life.
B. Evidence proving urgent circumstances
1) For childbirth: pregnancy confirmation (obstetrics certificate, ultrasound images, etc.); confirmation of the due date; and, if after childbirth, a birth certificate and documents proving the relationship with the child.
2) For other urgent circumstances: the Korean spouse’s medical certificate or hospitalization confirmation (for serious illness or accident); death certificate or funeral-related documents (in case of death); and a statement of reasons specifically describing the timing and content of the urgent circumstance.
C. Evidence proving that the prior refusal grounds have been cured
The specific grounds of the prior refusal should be confirmed, and evidence prepared proving that those grounds have been cured.
| Prior refusal ground | Evidence of cure |
|---|---|
| Income requirement not met | Latest withholding receipt for earned income, documents confirming business income, certificate of employment |
| No housing secured | A new lease agreement, certified copy of the register (excluding gosiwon, motel, etc.) |
| Course of relationship unclear | Additional evidence of the relationship (see item A.1 above) |
| Korean-language ability insufficient | Korean-proficiency test score report (TOPIK, etc.) |
D. Points to note when reapplying
- When reapplying, it is important to grasp precisely the grounds of the prior refusal and to specifically demonstrate that those grounds have been cured.
- Simply resubmitting the same documents as before offers no practical benefit on reapplication.
- Because the head of the overseas mission holds broad discretion over visa issuance (Seoul Administrative Court, Apr. 11, 2024, 2023gudan62413), a reapplication may again be refused, in which case challenging it through an administrative suit may be considered.
- That said, although there is Supreme Court precedent that a foreigner is, in principle, not recognized as having a legal interest in seeking revocation of a visa refusal (Supreme Court, May 15, 2018, 2014du42506), a foreigner who has completed a marriage report with a Korean national may be recognized as having standing, given the substantive connection with the Republic of Korea (see Seoul Administrative Court, Apr. 11, 2024, 2023gudan62413; Seoul High Court, May 14, 2025, 2024nu50287).
5. Key Practical Summary
| Category | Key content |
|---|---|
| Principal failure grounds | Absence of conjugal community life, unclear course of relationship, repeated marriage/divorce, income shortfall, no housing, inviter’s criminal record |
| Urgent circumstances | Imminent or post-childbirth, spouse’s serious illness or death, and other humanitarian reasons |
| Core additional evidence | Relationship evidence with temporal continuity + proof that the prior refusal grounds are cured |
| Reapplication strategy | Pinpoint the refusal grounds → focus on evidence of cure → secure third-party confirmations |
F-6 Visa: A Practical Guide to Preventing Forced Removal After Divorce
1. Overview of the Situation and Legal Structure
When a foreigner staying on F-6-1 (spouse of a national) status divorces, the person in principle loses the requirement for F-6-1 status (being the spouse of a national). If the person then cannot switch to F-6-3 (marriage ended), the basis for stay is lost and the person may become subject to forced removal. Divorce does not, however, result in immediate forced removal; a staged response is possible.
Key principle: Permission to extend the period of stay is a discretionary act in which the permitting authority decides whether to grant it, taking into account the applicant’s eligibility, the purpose of stay, the effect on the public interest, and the like (Suwon District Court, Feb. 12, 2014, 2013guhap8142; Seoul Administrative Court, Apr. 17, 2015, 2014gudan12843).
2. Whether the Period of Stay Can Be Extended While Divorce Proceedings Are Ongoing
A. Practice on extension while a divorce suit is pending. Where a divorce suit is ongoing, the foreigner may apply to extend the period of stay on that basis. In practice, where the filing of a divorce suit is demonstrated, the period of stay is in some cases extended until the suit concludes. In one case, a Vietnamese national filed a divorce suit against the spouse and, on that basis, applied for and received an extension of the period of stay (Incheon District Court, Dec. 12, 2017, 2017gudan50888).
Note: If the divorce suit is withdrawn or concludes by deemed withdrawal, the basis for the extension disappears, so the suit must be diligently maintained. In the above Incheon case, after the divorce suit concluded by deemed withdrawal due to two non-appearances, the plaintiff failed to obtain an extension and fell into unlawful overstay (Incheon District Court, Dec. 12, 2017, 2017gudan50888).
B. Applying for a change to F-6-3 status in parallel during the divorce suit. A change to F-6-3 status may be applied for even while a divorce suit is ongoing. In that case, the administrative agency examines the fault for the breakdown of the marriage. The core requirement — “a person who can no longer maintain a normal marital relationship owing to grounds for which the person is not responsible” — means “a case in which the primary fault for the breakdown of the marriage lies with the spouse who is a national” (Supreme Court, July 4, 2019, 2018du66869).
C. The content of the divorce judgment/mediation and the possibility of switching to F-6-3. The outcome of the divorce suit has an important effect on the F-6-3 screening.
1) Where the Korean spouse’s fault is specified in the divorce judgment: this works favorably for the switch to F-6-3. In one case, where a mediation was reached stating that “the plaintiff and the defendant (B) divorce due to the defendant’s fault,” an F-6-3 extension was granted (Suwon District Court, Mar. 23, 2016, 2015gudan3014).
2) Where the mediation/recommendation-of-settlement decision alone leaves the fault unclear: the switch to F-6-3 may be refused on the ground that the mediation terms alone make it hard to confirm the fault. The Supreme Court has held that, even where a decision in lieu of mediation stating that the divorce was due to the Korean spouse’s fault had become final, a refusal was lawful on the ground that, weighing various circumstances, the fault was unclear (Supreme Court, Sept. 4, 2014, 2014du36402).
3. Using the Special Rule for Domestic-Violence Victims
A. Filing a complaint/report with an investigative agency. Report the domestic-violence victimization to the police or file a complaint. Once an investigation begins, an extension is possible until that investigation procedure concludes. If a victim protection order is sought under the Act on Special Cases Concerning the Punishment of Crimes of Domestic Violence, a domestic-violence offender who fails to comply with the order becomes subject to criminal punishment (Supreme Court, June 1, 2023, 2020do5233; Supreme Court, July 13, 2023, 2021do15745).
B. Seeking a victim protection order from the court. The victim protection order system allows a victim to request protection directly from the court, without going through an investigative or prosecuting agency (Supreme Court, July 13, 2023, 2021do15745). Once a victim protection order is issued, it serves as a basis for extending the period of stay while that procedure is ongoing. A temporary protection order can also be used — a system for swiftly protecting the victim before the victim protection order is decided, which remains in effect from when it is served on the offender until a lawful victim protection order takes effect.
C. Entering a shelter for domestic-violence victims. The person may enter a foreigners’ protection facility under Article 7-2 of the Act on the Prevention of Domestic Violence, which protects foreign victims for up to two years. The fact of entering a shelter serves as strong evidence proving domestic-violence victimization.
D. Preparing evidence of domestic-violence victimization:
| Type of material | Specific content |
|---|---|
| Medical certificate | Medical certificate for the injured area (injury from domestic violence) |
| Police report records | 112 report records, confirmation from the responding officers |
| Restraining order | The court’s temporary protection order or victim protection order |
| Photographs/video | Photographs of the injured area, CCTV footage, etc. |
| Written statements | The victim’s own statement, witness statements |
| Medical records | Hospital treatment records, psychological-counseling records |
4. Staged Response When a Switch to F-6-3 Is Refused
A. Stage 1: Switch to visiting-cohabitation (F-1-6) status. Where the F-6-3 requirements cannot be met immediately after divorce, the person can secure a temporary basis for stay by switching to visiting-cohabitation (F-1-6) status, granted to “a foreigner whose marriage with a national has ended but whose stay in Korea is unavoidable for reasons such as settling domestic affairs” (Suwon District Court, Aug. 14, 2020, 2020gudan484). This status is used for reasons such as a suit claiming consolation money, recovery of unpaid wages, recovery of loaned money, and settling household affairs (Suwon District Court, May 25, 2016, 2016gudan333).
B. Stage 2: Apply to change to F-6-3, and an administrative suit if refused.
1) Key matters to prove when applying for the F-6-3 switch: the fact of maintaining a substantive marital relationship — it is not enough that a marriage report was merely on file; it must be found that the person was substantively maintaining a normal marital relationship and then became unable to maintain it (Daejeon District Court, May 31, 2018, 2017gudan101364); and the Korean spouse’s primary fault for the breakdown of the marriage (Supreme Court, July 4, 2019, 2018du66869).
2) Burden of proof in a suit to revoke a refusal: the burden of proving the grounds for the disposition lies with the defendant administrative agency, which must prove that “the primary fault for the breakdown of the marriage does not lie with the spouse who is a national” (Supreme Court, July 4, 2019, 2018du66869). The Supreme Court has in particular taken into account that foreigners, lacking understanding of Korean institutions and culture or sufficient Korean-language ability, sometimes separate or divorce without having properly gathered and secured evidence that could prove the circumstances favorable to them on the question of fault.
3) Applying for a stay of execution alongside the administrative suit: filing a suit to revoke the refusal together with an application for a stay of execution can temporarily prevent forced removal while the suit is pending (Immigration Act, Article 25; Administrative Litigation Act, Article 23).
C. Stage 3: Challenging a forced-removal order.
1) Objection: an objection to the forced-removal order may be filed with the Minister of Justice (Immigration Act, Article 60).
2) Suit to revoke the forced-removal order: where the order exceeds or abuses discretion, a revocation suit may be filed. The courts have recognized an exceeding or abuse of discretion where the order seriously infringes a foreigner’s freedom of residence and movement and the right to pursue happiness, including the right to family unity (Seoul Administrative Court, Apr. 16, 2008, 2007guhap24500).
5. Points to Note on Enforcement by Immigration Officers
Where an immigration officer wishes to inspect a third party’s residence, place of business, or the like to crack down on unlawful overstayers, the prior consent of the resident or manager is required (Supreme Court, Mar. 12, 2009, 2008do7156). An enforcement action carried out without consent may therefore be unlawful.
6. Summary of the Staged Response Strategy
| Stage | Situation | Response |
|---|---|---|
| Before divorce | Marriage still subsisting | Continuously gather evidence of conjugal community life |
| During the divorce suit | Suit pending | Apply for extension on the basis of the suit + apply for the F-6-3 change in parallel |
| Domestic-violence victimization | When violence occurs | Report/complain immediately + seek a victim protection order + use the special rule |
| After divorce is final | Before switching to F-6-3 | Switch to F-1-6 (visiting cohabitation) to secure a basis for stay |
| F-6-3 refused | On receiving the refusal | Revocation suit + application for a stay of execution |
| Forced-removal order | When the order is issued | Objection + suit to revoke the forced-removal order |
7. Key Practical Points
- From while the marriage is still subsisting, continuously gather evidence proving the substance of conjugal community life (cohabitation, shared finances, family exchanges, etc.). This is decisively important later for proving the “fact of maintaining a substantive marital relationship” in the F-6-3 screening.
- Where there is domestic-violence victimization, reporting it immediately is advantageous both for securing a basis for stay and for the switch to F-6-3.
- Obtaining a divorce judgment or mediation that expressly records the fault is decisively favorable to the F-6-3 switch. A simple uncontested divorce, or a mediation in which the fault is unclear, can work unfavorably (Supreme Court, Sept. 4, 2014, 2014du36402).
- An extension must be applied for before the period of stay expires; falling into unlawful overstay aggravates the disadvantages, such as forced removal and an entry ban.
F-6-2 (Child-Rearing Parent) Status: The Meaning of “Actual Child-Rearing” and a Guide to Preparing Evidence
1. Legal Basis and Purpose of F-6-2 Status
Article 12, [Attached Table 1-2], item 27 of the Enforcement Decree of the Immigration Act defines a child-rearing parent (F-6-2) among the marriage migrant (F-6) statuses as “a father or mother who is raising a child born of a marital relationship (including a de facto marital relationship) with a national, and whom the Minister of Justice recognizes” (Seoul Administrative Court, July 5, 2023, 2023gudan54245; Uijeongbu District Court, Apr. 17, 2024, 2023gudan5729). The purpose of this status is to ensure that a foreign father or mother who personally raises a child born of a marital relationship with a national can lead a family community life together with the child in the Republic of Korea (Seoul Administrative Court, July 5, 2023, 2023gudan54245).
2. The Meaning of “Actual Child-Rearing”
A. The courts’ interpretation. On the meaning of “rearing” required for F-6-2 status, the courts have held as follows:
“Rearing” means “taking care of a child so that the child grows up.” In light of the purpose of granting a marriage migrant (F-6) visa, even to a foreigner not presently in a marital relationship with a Korean national, to “a father or mother who is raising a child born of a marital relationship with a national,” this is a residence status granted on the premise that the foreigner must personally raise the child while leading a family community life with that child in the Republic of Korea. (Seoul Administrative Court, July 5, 2023, 2023gudan54245)
B. The core elements of “actual child-rearing.” Taking the above holding together, the “actual child-rearing” required for F-6-2 must satisfy both of the following elements:
| Element | Content |
|---|---|
| Family community life | The foreign father or mother must actually cohabit and live with the child in the Republic of Korea |
| Personal rearing | Not merely providing economic support, but personally caring for and looking after the child |
C. Cases not recognized as “actual child-rearing.” The courts have held that the following do not amount to actual child-rearing: where the spouse who is a national raises the child while the foreign spouse intends merely to provide the economic support needed for rearing (Seoul Administrative Court, July 5, 2023, 2023gudan54245); where the foreign spouse seeks to use F-6-2 status as a means of being able to engage in employment activity in Korea; and where it appears that the Korean spouse has raised the child since around 2015, so it is unclear what bond exists between the foreigner and the child, and doubtful whether the foreigner has any actual intent to raise the child.
3. Legal Issues Where the Korean Spouse Is the Holder of Parental Authority
A. Possibility of separating parental authority from custody. Under the Civil Act, the holder of parental authority and the custodian need not be the same person. They may be designated as different persons, in which case the effect of parental authority extends only to the portion excluding custody. Accordingly, even where the Korean spouse is designated the holder of parental authority, if the foreign spouse is designated the custodian and is substantively raising the child, the F-6-2 requirement may be satisfied.
B. The relationship between designation of parental authority and F-6-2 status. In practice, where, after divorce, the Korean spouse is designated the holder of parental authority and the foreign spouse is designated the custodian, F-6-2 status may be recognized if the foreign spouse proves that he or she is substantively raising the child. That said, the courts require the foreign spouse to prove, specifically, an actual intent to raise the child and the fact of rearing (Seoul Administrative Court, July 5, 2023, 2023gudan54245).
C. Where the person has only visitation rights. Where, after divorce, the foreign spouse is not the custodian but has only visitation rights, this does not amount to the “rearing” required for F-6-2 status. However, under a special rule in the residence-management handbook, there is a special provision granting child-rearing (F-6-2) status for up to one year to a person whose marriage ended while staying on spouse-of-a-national (F-6-1) status and who has visitation rights over a child born with the spouse who is a national. This special rule applies not only where a foreigner staying on F-6-1 status applies to extend the period of stay, but also where a foreigner staying on a status other than marriage migrant (F-6) applies for a change of status to child-rearing (F-6-2).
4. Evidence for Proving Actual Child-Rearing
A. Evidence of family community life (top priority)
| Type of material | Specific content |
|---|---|
| Documents confirming cohabitation | Resident-registration record at the same address; the address on the alien registration card |
| Lease agreement | Confirmation of the living space where the foreign father/mother and child reside together |
| Utility-payment records | Records of electricity, gas, and water payments (indirect proof of cohabitation) |
| Delivery/daily-life records | Records showing daily life together with the child |
B. Evidence of the fact of personal rearing
1) Child’s education: the child’s school record (check whether the foreign father/mother is entered in the guardian field); records of receiving and signing school notices and home-correspondence letters; academy enrollment and payment records (in the name of the foreign father/mother); and records of participation in parent-teacher consultations.
2) Child’s medical care: the child’s hospital treatment records (with the foreign father/mother entered as guardian); health-insurance dependent registration (the child listed on the foreign father/mother’s health insurance); and vaccination records (including the guardian’s signature).
3) Daily rearing: photographs and videos taken with the child (with temporal continuity); records of expenditure relating to rearing the child (food, clothing, education costs, etc.); and records of daycare/kindergarten attendance (with the foreign father/mother handling drop-off and pick-up).
C. Documents relating to court decisions
- Divorce judgment or mediation protocol (where the foreign spouse is designated the custodian).
- Adjudication designating the holder of parental authority and the custodian (where the foreign spouse is designated the custodian).
- In a judicial divorce, the court must, even absent a request by the parties, designate ex officio the holder of parental authority and the custodian for a minor child (Supreme Court, June 23, 2015, 2013meu2397), so the divorce judgment must necessarily include the designation of the custodian.
D. Third-party confirmations
- Confirmations from neighbors, schoolteachers, daycare teachers, and the like (to the effect that the foreign father/mother actually raises the child).
- A confirmation from the Korean spouse (acknowledging that the foreign spouse raises the child).
- Confirmations from relatives (statements by relatives who witnessed the fact of rearing).
E. Evidence of the foreign spouse’s intent and capacity to rear
- Documents proving Korean-language ability (to prove the ability to communicate with the child). However, it is not right to assess a person as unfit to be designated custodian merely on the ground of insufficient Korean-communication ability (Supreme Court, Sept. 30, 2021, 2021meu12320, 12337).
- Documents proving income (to prove the economic capacity needed to raise the child).
- A rearing plan (specifically describing future rearing methods and plans).
5. Additional Points for a Child Born of a De Facto Marriage
F-6-2 status applies not only to a legal marriage but also to raising a child born of a de facto marital relationship. In that case, however, the following should be noted:
- Documents proving the de facto marital relationship (duration of cohabitation, shared living, etc.).
- Documents confirming the biological parent-child relationship (judgment confirming the non-existence of a biological parent-child relationship, documents relating to acknowledgment, etc.).
- Adjudication designating the holder of parental authority and the custodian (see the case in which a judgment confirming the non-existence of a biological parent-child relationship and an adjudication designating parental authority were used as important materials in the F-6-2 screening (Uijeongbu District Court, Apr. 17, 2024, 2023gudan5729)).
- However, where there is a ground for annulment of marriage under the Civil Act, such as bigamy, the de facto marital relationship is hard to recognize, and the F-6-2 requirement may not be satisfied (Uijeongbu District Court, Apr. 17, 2024, 2023gudan5729).
6. Key Practical Summary
| Category | Key content |
|---|---|
| Meaning of actual child-rearing | Family community life with the child + personal rearing (economic support alone is insufficient) |
| Parental authority ≠ custody | Even if the Korean spouse holds parental authority, F-6-2 is possible if the foreign spouse is designated custodian |
| Where there are only visitation rights | In principle no F-6-2; but a special rule may grant stay for up to one year |
| Core evidence | Cohabitation + the fact of personal rearing (school/medical records, etc.) + the court’s custody designation |
| Caution | High likelihood of refusal if used as an employment device under the guise of economic support |
F-6 Visa: The Inviter’s Criminal Record and a Guide to Administrative Litigation
1. Whether a Visa Can Still Be Refused After the Statutory Period Has Elapsed
A. The meaning and limits of the statutory period. Article 9-5(1), subparagraphs 9–12 of the Enforcement Rules provide that, as to an inviter’s record of domestic violence offenses, child/youth sexual offenses, sexual violence offenses, specified violent offenses, homicide, or false marriage reporting, a visa may be refused unless the period set in each subparagraph (10 years, etc.) has elapsed. The elapsing of the statutory period does not, however, mean that a visa will be granted as a matter of course.
B. Visa issuance is a discretionary act. Visa issuance is a discretionary act of the administrative agency (Supreme Court, July 11, 2019, 2017du38874). Accordingly, even after the statutory period has elapsed, the agency may refuse a visa on grounds such as the following.
1) Lack of genuineness of the marriage. Regardless of whether the statutory period has elapsed, a visa may be refused where the genuineness of the marriage is not recognized. The Immigration Act and its subordinate statutes require, for a marital-cohabitation visa, not only the existence of a marriage but also its genuineness and the likelihood of a normal married life — to prevent international marriage from being used as an easy means of obtaining a visa, and to prevent the marriages by deception and the domestic violence against foreign spouses that occurred in the past (Seoul High Court, Dec. 26, 2024, 2024nu41344).
2) Public-interest grounds. The agency holds broad discretion to decide whether to grant a visa, taking into account the applicant’s eligibility, the purpose of stay, the effect on the public interest, and the like. Even where the inviter’s criminal record has passed the statutory period, it is possible to refuse a visa on public-interest grounds, weighing the gravity of the offense, its repetition, the relationship with the victim, and so on.
3) Review of whether the proportionality principle is violated. That said, where the agency refuses a visa after the statutory period on the ground of the criminal record alone, it must assess whether the refusal violates the principle of proportionality. The Supreme Court has held that it should have been assessed whether it violated the proportionality principle for the head of an overseas mission to refuse a visa while exercising no discretion at all and being bound solely by the fact that there had been a past entry-ban decision (Supreme Court, July 11, 2019, 2017du38874).
2. Arguments in an Administrative Suit Against a Visa Refusal
A. The standing issue (a threshold question)
1) Standing of the foreigner (the invitee). In principle, a foreigner is not recognized as having a legal interest in seeking revocation of a visa refusal (Supreme Court, May 15, 2018, 2014du42506). This is because the legislative purpose of the Immigration Act is to protect the public interest of the Republic of Korea’s immigration order and border management, and it is hard to read it as guaranteeing a foreigner the right to enter Korea. Whether, under the principle of reciprocity, the counterpart country likewise allows our nationals to contest a visa refusal is also considered.
2) Exception: where there is a substantive connection with the Republic of Korea. The Supreme Court recognizes a legal interest, and hence standing, where a foreigner has formed an interest with a substantive connection to, or a legally protectable value in relation to, the Republic of Korea. A foreigner who has completed a marriage report with a Korean national may be recognized as having such a substantive connection (Seoul Administrative Court, Apr. 11, 2024, 2023gudan62413).
3) Standing of the Korean spouse (the inviter). Whether the Korean spouse can have standing in an administrative suit contesting the refusal of a visa to the foreign invitee is a contested question. The Central Administrative Appeals Commission has recognized the inviter’s standing to file, and there is also a scholarly view recognizing the inviter’s standing.
4) The proper defendant. In a suit to revoke a visa refusal, the defendant is the administrative agency that externally made the disposition in its own name — that is, the head of the overseas mission (Supreme Court, Mar. 14, 1995, 94nu9962).
B. Arguments on the merits
Where standing is recognized, the following arguments may be made on the merits.
1) Argument of an exceeding or abuse of discretion.
(a) Unlawfulness of a refusal based solely on a criminal record after the statutory period. Refusing a visa solely on the basis of a criminal record that has passed the statutory period may amount to an exceeding or abuse of discretion, as exercising no discretion at all and being bound only by past circumstances. The Supreme Court held that it should have been assessed whether it violated the proportionality principle for the head of an overseas mission to refuse a visa while exercising no discretion at all and being bound solely by the fact that there had been an entry-ban decision 13 years and 7 months earlier (Supreme Court, July 11, 2019, 2017du38874).
(b) Argument of a violation of the proportionality principle. Weighing the following factors, one can argue that the disadvantage from the refusal is excessively great relative to the public interest it seeks to achieve: the elapsed period since the criminal record (where it far exceeds the statutory period); the degree of the inviter’s improvement and rehabilitation since the offense; the genuineness of the marriage and the substance of conjugal community life; the degree of disadvantage the couple suffers from the refusal; and the magnitude of the public interest the refusal seeks to achieve.
(c) Argument of a violation of the Administrative Procedures Act. Where the head of an overseas mission gave only oral notice without preparing a written visa-refusal disposition stating the reasons, one can argue there is a defect violating Article 24(1) of the Administrative Procedures Act (Supreme Court, July 11, 2019, 2017du38874). However, Article 9-6 of the Enforcement Rules provides that the fact of and reasons for a visa refusal may be notified, and that where the applicant visits the overseas mission and requests it, a written visa-refusal notice must be issued.
2) Proving the genuineness of the marriage. Where the agency relied, beyond the criminal record, on a lack of genuineness of the marriage as a ground for refusal, the genuineness must be actively proven through materials such as: evidence of the relationship (photographs together, call/message records, records of mutual visits, etc.); records of expenditure in preparing for the marriage; confirmations from third parties (family, acquaintances, etc.); and certificates of Korean-language study.
3) Requesting that the reasons be provided. Where the written visa-refusal disposition does not state the reasons specifically, one should, under Article 9-6(2) of the Enforcement Rules, visit the overseas mission to request issuance of the written visa-refusal notice, confirm the specific grounds, and then prepare rebuttal materials accordingly.
3. Practical Points
A. Response strategy by type of criminal record
| Type of criminal record | Statutory period | Additional response after the period |
|---|---|---|
| Domestic violence offenses | 10 years after the disposition ended or after completion of an actual term of imprisonment without labor or heavier | Prove no reoffending, improved relationship with the victim, completion of counseling, etc. |
| Child/youth sexual offenses | 10 years from when the sentence became final | Prove no reoffending, completion of a treatment program, etc. |
| Sexual violence / specified violent / homicide | 10 years after completion of an actual term of imprisonment without labor or heavier | Prove no reoffending, reintegration and a normal life |
| False marriage reporting | 5 years from when the sentence became final | Focus on proving the genuineness of the current marriage |
B. Matters to review before filing an administrative suit
- Securing standing: review the foreign spouse’s substantive connection to Korea, or the Korean spouse’s standing.
- Observing the filing period: within 90 days from the day the disposition became known, and within 1 year from the day the disposition was made (Administrative Litigation Act, Article 20).
- Confirming the reasons: ascertain the specific grounds of refusal by requesting issuance of the written visa-refusal notice (Enforcement Rules, Article 9-6(2)).
- Considering reapplication: in parallel with the suit, also consider reapplying after curing the grounds of refusal.
4. Summary
| Category | Key content |
|---|---|
| Refusal possible after the statutory period? | Yes. Visa issuance is discretionary, so even after the period a refusal is possible for lack of genuineness, public-interest grounds, etc. |
| Core litigation arguments | Exceeding or abuse of discretion (violation of proportionality); violation of the Administrative Procedures Act |
| Standing | A foreigner is denied in principle; may be recognized exceptionally where there is a substantive connection with Korea |
| Practical response | Confirm the refusal grounds specifically → prove improvement since the criminal record → focus on proving the genuineness of the marriage |
Whether the 5-Year Re-Invitation Restriction Can Be Waived Where a Sham Marriage Is Proven Without a Marriage Nullity Judgment
1. The Core Problem
The requirement for waiver ground ③ under the guidelines is as follows: where the previously invited foreigner did enter the country, but a marriage-nullity judgment was obtained and, following a field investigation, it is clear that the marriage with that foreigner was not a sham marriage. This requirement expressly demands a marriage-nullity judgment. The question, therefore, is whether a case in which a sham marriage is proven but no marriage-nullity judgment has been obtained directly satisfies this waiver ground.
2. The Legal Nature of Marriage Nullity — Void as a Matter of Course
A. A marriage is void as a matter of course, even without a judgment. A sham marriage falls within Article 815, subparagraph 1 of the Civil Act—“where there was no agreement to marry between the parties”—and is void as a matter of course. Unlike annulment, marriage nullity does not require that nullity be asserted by suit or that a nullity judgment be obtained; nullity may be asserted by means other than suit, and the persons who may assert it are not limited. The Supreme Court has likewise held:
The marriage-nullity ground under Article 815, subparagraph 1 of the Civil Act—“where there was no agreement to marry between the parties”—refers to a case in which the parties do not have the intent to create the mental and physical union recognized as that of a married couple under social convention; … where there is no effective intent to establish a true conjugal relationship between them, the marriage is void. (Supreme Court, Sept. 10, 1985, 85do1481)
The Supreme Court has also held that where it is clear, by a criminal judgment establishing that the marriage is void for want of mutual marital intent, the family relation register may be corrected even without a marriage-nullity judgment.
B. Void even where only one party lacks marital intent. The Supreme Court has held that the marriage is void even where only one party has the effective intent to establish a true conjugal relationship and the other party lacks such intent (Supreme Court, June 10, 2010, 2010meu574).
3. Analysis Where a Sham Marriage Is Proven Without a Marriage-Nullity Judgment
A. The textual limit of the guideline waiver ground. Because the guidelines expressly require that a marriage-nullity judgment “was obtained,” a case in which a sham marriage is proven but no marriage-nullity judgment has been obtained does not, on the text, directly satisfy waiver ground ③.
B. The case of a criminal suspended indictment.
1) Limits on the probative force of a suspended indictment. A criminal suspended indictment is not a final guilty judgment, so it has no effect of legally establishing the fact of a sham marriage. The Constitutional Court held:
Although there was no material establishing that the complainant lacked a genuine intent to marry at the time of the marriage report, the respondent nonetheless found the suspicion and issued a suspended-indictment disposition, thereby infringing the complainant’s right to equality and right to pursue happiness. (Constitutional Court, Sept. 30, 2010, 2008heonma686)
That is, a suspended-indictment disposition does not itself establish the fact of a sham marriage; on the contrary, there are cases in which the suspended indictment was wrong. A suspended indictment alone is therefore unlikely to satisfy the guideline waiver ground.
2) Practical use where there is a suspended indictment. That said, where there is a suspended indictment, it can be used as material demonstrating the fact of a sham marriage so as to influence the agency’s exercise of discretion. In particular, the investigation records accompanying the suspended indictment (absence of cohabitation, broker involvement, payment of consideration, etc.) serve as strong material supporting the fact of a sham marriage.
C. The case of the party’s admission (confession). Even where the former spouse admits the fact of a sham marriage, this is merely a civil admission and cannot substitute for a court’s marriage-nullity judgment. However, on the basis of it, filing a suit to confirm marriage nullity can yield a marriage-nullity judgment quickly.
4. Legal Grounds for Asserting Waiver Without a Marriage-Nullity Judgment
A. Argument of an exceeding or abuse of discretion. Even without a marriage-nullity judgment, where the fact of a sham marriage is clearly proven by a criminal judgment, investigation records, the parties’ statements, and the like, an exceeding or abuse of discretion can be argued: where it is clear that the marriage is a sham marriage that is void as a matter of course, applying the 5-year re-invitation restriction as is, solely on the formal ground that there is no marriage-nullity judgment, runs counter to the purpose of the restriction and violates the principle of proportionality. Because a marriage is void as a matter of course even without a judgment, refusing a waiver on the ground of the absence of a marriage-nullity judgment where the fact of a sham marriage is clear may amount to an exceeding or abuse of discretion, prioritizing form over substance.
B. Relationship to the purpose of the 5-year restriction. The purpose of the 5-year re-invitation restriction is to “prevent marriage from being used as a device for a foreigner to stay in Korea without the substance of a marriage.” Where a sham marriage is clear, the inviter may in fact be a victim of the sham marriage, or a co-offender; there is thus doubt as to whether applying the 5-year restriction as is, even in such a case, accords with the purpose of the restriction.
C. A roundabout solution through correction of the family relation register. Under Supreme Court precedent, where it is clear by a criminal judgment that a marriage is void, the family relation register may be corrected even without a marriage-nullity judgment. Accordingly, where there is a guilty criminal judgment concerning a sham marriage, one may consider correcting the family relation register on that basis and then making the re-invitation application.
5. Practical Recommendation — Obtaining a Marriage-Nullity Judgment Is the Rule
A. Filing a suit to confirm marriage nullity. Where the fact of a sham marriage is proven, the surest method is to file a suit to confirm marriage nullity in the Family Court (Family Litigation Act, Article 23). A party, a legal representative, or a relative within the fourth degree may file a suit for marriage nullity at any time, and there is no limit on the filing period.
B. The respondent to the suit. In filing a suit for marriage nullity, the spouse (former spouse) is made the respondent; where the former spouse has died, the prosecutor is made the respondent (Family Litigation Act, Article 24(1) and (3)).
C. A swift judgment where there is an admission by the party. Where the former spouse admits the fact of a sham marriage, deemed confession or constructive admission applies in the suit to confirm marriage nullity, so a marriage-nullity judgment can be obtained swiftly.
6. Overall Conclusion
| Category | Possibility of waiver | Remarks |
|---|---|---|
| Only a suspended indictment, no nullity judgment | Cannot directly satisfy the guideline ground | Can argue exceeding/abuse of discretion |
| Only the party’s admission, no nullity judgment | Cannot directly satisfy the guideline ground | Can swiftly file a marriage-nullity suit |
| A guilty criminal judgment for a sham marriage | Re-invitation possible after correcting the family relation register | Register correctable even without a nullity judgment |
| A marriage-nullity judgment obtained | Can satisfy the guideline ground | Cooperation with a field investigation needed |
In conclusion, where a sham marriage is proven but no marriage-nullity judgment has been obtained, the guideline waiver ground is not, on its text, directly satisfied. That said, it is advisable to pursue, in parallel, methods such as: (1) a roundabout solution through correction of the family relation register where the sham marriage is clearly proven by a criminal judgment or the like; (2) a suit to revoke the refusal, arguing an exceeding or abuse of discretion; and (3) obtaining a judgment through the swift filing of a suit to confirm marriage nullity (Family Litigation Act, Article 23; Civil Act, Article 815, subparagraph 1).
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