Divorcing a foreign spouse: which country's law applies?

As international marriages increase, divorce consultations involving foreign spouses come in steadily. Many people tell us their spouse returned to their home country and contact was lost, or that it seems the spouse never intended to live in Korea in the first place. In such cases, there are two things to check before looking at the grounds for divorce: whether a Korean court can take the case, and under which country's law it will be decided.

Can a Korean court take the case?

Article 56 of the Act on Private International Law (국제사법) sets out when Korean courts have jurisdiction in matrimonial cases. These include cases where one spouse's habitual residence is in Korea and the couple's last common habitual residence was also in Korea, where the plaintiff and minor children have their habitual residence in Korea, where both spouses are Korean nationals, and where a Korean national with habitual residence in Korea files suit solely to dissolve the marriage.

If you lived together in Korea and your foreign spouse left home, Korean courts will usually have jurisdiction. Conversely, if both spouses live abroad or both are foreign nationals, each case has to be reviewed separately.

Jurisdiction affects not only the divorce but also matters concerning children and property. If your child is growing up in Korea, the person with parental authority (친권자) and the custodial parent can also be decided by the Korean court, but if property in your spouse's name is abroad, there are limits to enforcing a Korean judgment against it. Even if the divorce itself is settled easily in Korea, actually receiving a division of property and child support often remains a separate task.

Under which country's law is it decided?

Article 66 of the Act on Private International Law provides that divorce is governed, in order, by the law of the spouses' common nationality, the law of their common habitual residence, and the law of the place most closely connected, while providing that Korean law applies if one spouse is a Korean national with habitual residence in Korea. So for a Korean spouse living in Korea, the grounds for divorce are decided under Article 840 of the Civil Act. How divorce works in the other spouse's country is not an issue at this stage.

Service of documents and what comes after the judgment

If you do not know your spouse's address, you show that service by ordinary means is impossible and proceed by service by public notice (공시송달). The first service by public notice takes effect after two weeks, and service by public notice for service to be made abroad after two months, and these periods cannot be shortened (Article 196 of the Civil Procedure Act). If you know the foreign address, service must go through overseas service, which can take several months.

• Check your spouse's name in Roman letters, date of birth and passport number in the documents submitted when the marriage was registered
• Confirm whether your spouse has left the country through an immigration records inquiry made through the court
• Keep records of any missing-person report and messages showing attempts to make contact
• If the marriage was a means of entering Korea from the start, also consider annulment of the marriage (혼인무효)

Conversely, if you obtained a divorce judgment from a foreign court, it must meet the recognition requirements of Article 217 of the Civil Procedure Act before it can be reflected in the Korean family relations register. The points examined are whether that court had international jurisdiction, whether the defendant was lawfully served by a method other than service by public notice or appeared in the proceedings, whether it is contrary to good morals, and whether there is reciprocity. Please also bear in mind that to have a divorce in Korea reflected in the civil status records of your spouse's country, you must separately follow that country's procedures.