If you want to get divorced under the Korean legal system, you have two options. First, you can get a divorce by making an agreement with your spouse. This is possible only when the two parties agree on the terms of the divorce as well as the idea of getting divorced. Then what if your spouse doesn’t want a divorce or you disagree to the terms of a divorce? If the married couple can’t reach an agreement, they will have to resort to divorce through trial (a.k.a. Judicial Divorce). In order to file for a divorce through the Family Court, you have to satisfy at least one of the following conditions (Article 840, Civil Act). 1. Your spouse has committed an act of “infidelity” – An act of ‘infidelity’ is a broad concept that includes a wide range of unfaithful conduct, which may fall short of adultery. 2. Your spouse has maliciously deserted you – ‘Malicious desertion’ refers to denying the obligation to live together, financially support and aid his/her spouse with no justifiable reason. 3. You have been extremely maltreated by your spouse or your in-laws – specifically, your mother-in-law or father-in-law. 4. Your parent or parents have been extremely maltreated by your spouse; 5. Whether your spouse is dead or alive is unknown for three or more years; 6. There exists any other serious cause that makes it extremely difficult to continue the marriage.
Among the conditions listed above, number 6 can be the most important one. “Any other serious cause that makes it extremely difficult to continue the marriage” refers to a situation where the married couple’s relationship, the essence of a marriage which is based on mutual affection and trust, has been irrevocably damaged and therefore forcing the continuation of such marriage will result to unbearable suffering. In judging whether there indeed is such a situation, various factors and circumstances should be considered such as whether the parties have the will to continue the marriage, which party is responsible for the failure of the marriage and to what degree, how long they have been married, whether they have children or not and their age, how old the parties are, and whether the parties can earn a living after the divorce. So, what if the husband had an affair and this eventually ruined the marriage. Since their relationship as husband and wife has been severely damaged and there in no point in continuing the marriage any longer, it might be best for this married couple to get divorced. But what if the wife refuses and insists on keeping this family intact? Can the husband file for Judicial Divorce under Article 840. 6.? If not, why? According to a recent court ruling, the Supreme Court rendered that even though the conditions indicated in Article 840. 6 are satisfied and the married couple has serious causes that make it difficult to continue the marriage, still the party at fault cannot request a Judicial Divorce unless ① the other faultless party clearly has no intention to continue the marriage and wishes to get divorced also, ② protection and consideration for the faultless party has been secured to a degree that the damages done by the party at fault can be made up for, ③ a lot of time has passed since the marriage was destroyed and determining who was at fault in ruining the marriage in the first place is meaningless because both parties have gotten over a lot of their mental agony. The important thing here is that the one who brought on the breakage of the marriage can only file for divorce only when at least one of the conditions above are satisfied. In other words, the faultless party shall not have to withstand any additional harm by going through a divorce coercively.