If you have considered getting a divorce through the Korean Family Court, you might be familiar with Korea’s major divorce principle. In Korea, the person who is liable for the reason of the devastation of their marriage cannot file for a divorce. An easy example would be having an affair. If the husband had an affair, the wife found out, and their marriage was broken due to this affair, then the husband cannot file for a divorce while the wife is free to do so. However, this isn’t the case in many Western countries, especially European countries.
When a married couple gets married in a European country, let’s say Germany, they move to Korea and their marriage is recognized in Korea also. Now if they want to get divorced completely in both countries, their divorce should be finalized in both Germany and Korea. But Germany and Korea have different rules for getting divorces. So, what will happen when the person at fault gets a divorce ruling from Germany, and assert that it should have effect within Korea? Will that person be able to get divorced in Korea with the German divorce ruling?
According to a recent court ruling made by the Korean Family court, the answer is yes. The court ruled that “A court ruling made by a foreign court has effect within Korea under certain circumstances. Thus a divorce ruling made by the German court will have effect in Korea, even though a separate divorce case is pending at the Korean family court”. It also ruled that “The husband, who is of foreign nationality, applying for a divorce at the country of his origin does not imply that he, filed a case overseas to avert from the application of Korean civil law”. So, eventually, the divorce was finalized within Korea through the court ruling made overseas. However, keep in mind that you do have to go through another threshold to make it effective in South Korea. According to the Korean Civil Procedure Act article 217, A final and conclusive judgment by a foreign court shall be valid, only upon the entire fulfillment of the following requirements: 1. That an international jurisdiction of such foreign court is recognized in the principles of an international jurisdiction pursuant to the Acts and subordinate statutes of the Republic of Korea, or to the treaties; 2. That a defeated defendant received, pursuant to a lawful method, a service of a summons or a document equivalent thereto, and a notice of date or an order, with a time leeway sufficient to defend (excluding the case pursuant to a service by public notice or similar service), or that he/she responded to the lawsuit even without being served; 3. That such judgment does not violate good morals and other social order of the Republic of Korea; and 4. That there exists a mutual guarantee. If you fail to meet all 4 requirements, then you cannot insist that the divorce is valid in South Korea. To know more about the effects of a foreign court’s judgment please contact us, and we’ll guide you through the procedures.