Nullity and annulment of marriage: how are they different from divorce?

“I don't want a divorce on my record. Can't the marriage itself be treated as if it never happened?” This is a question often asked by people who have been through a fraudulent marriage or a marriage for the purpose of entering Korea. Besides divorce, the law provides two other paths, nullity and annulment of marriage, but the requirements are strict and the deadlines short, so you first need to decide which path to take.

Nullity of marriage: when there was no agreement from the start

Article 815(1) of the Civil Act provides that a marriage is null if there is no agreement to marry between the parties. In its judgment 2010Meu574 of June 10, 2010, the Supreme Court viewed an agreement to marry as a meeting of minds to form the mental and physical union that society recognizes as a married couple. If one side was sincere but the other registered the marriage as a means to enter Korea or get a job, the marriage is null even if they agreed to the registration itself.

If the other side secretly forged documents and registered the marriage, you can also claim nullity because there was no agreement to marry. Nullity of marriage can be claimed without any time limit (Article 23 of the Family Litigation Act), and it goes straight to a lawsuit without mediation. Once nullity becomes final, the marriage is treated as never having existed, and the family relationship register is corrected according to the judgment. On the other hand, the relationship going sour after the wedding is a matter for divorce, not nullity.

Annulment of marriage: a path with short deadlines

Annulment is sought when, for example, a person married due to fraud or duress, or did not know at the time of marriage of a serious illness or other grave reason that makes married life impossible to continue (Article 816 of the Civil Act). For fraud or duress, a claim cannot be made once 3 months have passed from the date the fraud was discovered or the duress ended (Article 823), and for a grave reason, once 6 months have passed from the date the reason became known (Article 822).

Fraud does not mean there is a duty to disclose everything in the past. The question is what was hidden and how important it was to the decision to marry. Even commonly disputed matters such as hidden debts or education do not lead to annulment by themselves; the court also looks at whether there was active deception and how it affected the decision.

Duress is when threats or violence led to a marriage the person did not want. In this case, the period is counted from the date the person escaped the duress. If they were threatened continuously while living together, when that situation ended becomes the issue, so materials such as the date they left home and records of police reports become important.

The consequences differ as follows

• Nullity of marriage: the marriage is treated as never having existed, and children born in the meantime become children born out of wedlock (Article 855(1) of the Civil Act)
• Annulment of marriage: the effect does not go back in time; the marriage ends when the judgment becomes final (Article 824)
• In an annulment, custody of children and visitation follow the same provisions as divorce (Article 824-2)
• Damages for emotional distress can be claimed from the party responsible for the nullity or annulment (Articles 825 and 806)

If the deadline for annulment has passed or nullity is hard to prove, we change direction and consider divorce and consolation money (위자료). ‘When did you find out’ is often what is disputed, so whichever path you take, the starting point is to immediately keep messages or records from the day you learned the facts.