Can you divorce over ‘incompatible personalities’? Rereading Article 840 of the Civil Act

“Can I get a divorce because of incompatible personalities?” This question often comes up at the start of a consultation. If your spouse does not agree to a divorce, the court looks at whether one of the grounds set out in Article 840 of the Civil Act exists. That provision does not mention incompatible personalities, but that does not mean divorce is blocked.

Five of them are specific grounds

Article 840 lists six grounds. The first five are relatively clear.

• Item 1, an unchaste act by the spouse: even without sexual intercourse, it may apply if the act betrays the marital duty of fidelity
• Item 2, malicious desertion: a typical example is leaving home without a justifiable reason, cutting off living expenses and not returning
• Item 3, extremely unjust treatment by the spouse or the spouse's lineal ascendants: unbearable treatment such as violence or severe insults
• Item 4, extremely unjust treatment of one's own lineal ascendants by the spouse: verbal abuse or mistreatment directed at your parents
• Item 5, where it has been unclear for three years or more whether the spouse is alive or dead

The sixth ground is the broadest

Item 6 is ‘any other serious reason making it difficult to continue the marriage’. Circumstances that do not fit neatly into the first five, such as incompatible personalities, long separation, a life without communication, financial problems or conflict with in-laws, are mostly dealt with here.

What the court looks at is not the label of the conflict but its result. It considers whether the marriage has broken down to the point where it is hard to restore, and whether being told to continue the marriage would cause one party unbearable suffering. However, if the main responsibility for the breakdown lies with the party seeking the divorce, the matter becomes one of a divorce claim by the spouse at fault (유책배우자), which in principle is not accepted.

The circumstances used in this judgment are specific. How long the separation has lasted, what contact and living expenses were like during that time, whether there were attempts at couples counseling or restoring the relationship, and whether the other spouse has shown through their actions an intention to continue the marriage are all reviewed together. The course of life over several years often carries more weight than one or two big fights. So when relying on item 6, the starting point is a timeline setting out the conflicts since the marriage in date order.

The ground you choose determines the evidence

You do not have to choose just one ground, and in practice several grounds are often argued together. Still, deciding on the central ground determines what materials to gather. For an unchaste act you need messages and payment records; for malicious desertion, account records showing living expenses were cut off; for unjust treatment, medical certificates and records of reports.

You also need to watch the time limits. Under item 1, you can no longer claim on that ground once six months have passed since you learned of it or two years since it occurred (Article 841), and item 6 has the same periods (Article 842). However, case law holds that these periods are not a problem if the broken state of the marriage still continues today. Incompatible personalities is a phrase not found in the statute, but it is no reason you cannot go to court either.