Divorce suit and suit against an affair partner: file together or separately?

People considering divorce are often confused, first of all, about when and where to file a lawsuit against the affair partner. A case claiming only against the affair partner while staying married and a case claiming against both the spouse and the affair partner while divorcing are handled by different courts to begin with. Getting the order wrong costs more time and money.

The nature of the case decides the court

A case claiming damages for mental harm from an affair partner's infidelity while staying married is an ordinary civil case, so it is handled by the district court. On the other hand, a claim for damages arising from divorce, including a claim against a third party, is a Category Da (다류) family litigation case under the exclusive jurisdiction of the family court (Article 2(1)1(c)2) of the Family Litigation Act).

Several family litigation cases arising from the same facts can be filed as a single suit, and if they fall under different courts, they can be filed together in a family court that has jurisdiction over one of them (Article 14 of the Family Litigation Act). That is why it is common to name the spouse as Defendant 1 and the affair partner as Defendant 2 in the divorce complaint and claim against both at once.

The family court starts with mediation

Divorce and claims for consolation money arising from divorce in principle go through mediation first. For Category Na (나류) and Da family litigation cases, mediation must be applied for, and even if a suit is filed without applying for mediation, the court in principle refers it to mediation (Article 50 of the Family Litigation Act). If the terms of the divorce and the consolation money from the affair partner are settled together in mediation, the case ends without a trial; if not, it moves on to hearings.

Filing together versus separately

If you file together, the same panel looks at the same evidence at once. Since the spouse's responsibility and the affair partner's responsibility are judged on the same facts, the risk of conflicting conclusions is reduced, and witness examinations and financial record inquiries can be done in one go. If the spouse's card statements show payments for accommodation or gifts, those materials can be used as they are for the claim against the affair partner.

On the other hand, a divorce case also involves division of property and child custody issues, so it tends to take longer. If you want to resolve the affair partner issue first, or have not yet decided whether to divorce, you can also file the suit against the affair partner in the district court first. Conversely, if evidence is lacking, you may consider proceeding with the divorce suit first and strengthening the claim against the affair partner with financial records obtained in that process. Either way, your statements about when and how you learned of the affair must stay the same in both cases.

• Have you already decided whether to divorce?
• Do you want to resolve the affair partner issue quickly, or settle everything at once?
• Do you need your spouse's financial records to complete the evidence?
• Are there circumstances on your side as plaintiff that could be disputed?

Why the last question matters

The Supreme Court has held that where both spouses are equally responsible for the breakdown of the marriage and the claim for consolation money against the spouse is dismissed, a third party who took part in the infidelity cannot be held liable for damages arising from the divorce either (Supreme Court judgment 2023Meu16678 of June 27, 2024). When claiming together with a divorce, you should be prepared for the spouse to file a counterclaim alleging fault on your part. Whether to file together or separately should be decided after weighing this risk as well.