Division of property after divorce: a 2-year period that cannot be extended

In legal consultations, people often talk about the ‘statute of limitations’: that sending a certified letter stops the clock, or that it starts again if the other side says they will pay. None of this applies to the 2 years for division of property after divorce.

It is an exclusion period, not a statute of limitations

Article 839-2(3) of the Civil Act provides that the right to claim division of property expires when 2 years have passed from the date of divorce. These 2 years are an exclusion period (제척기간), so they do not stop or get extended because you made a demand to the other side. The right is preserved only if you file a petition for mediation or a request for adjudication with the family court within the period. The same provision applies to judicial divorce (Article 843).

The ‘date of divorce’ that serves as the standard is the date the divorce was registered for a divorce by agreement, and the date the judgment became final for a judicial divorce. You can confirm the exact date by obtaining a detailed marriage relationship certificate. Remember that the period keeps running even while the other side drags things out, saying they will sort it out soon.

People who put off talking about property at the time of a divorce by agreement need to be especially careful. Right after the divorce, emotions are still raw and you avoid contact, and only after about a year, once life has settled, does the property issue come to mind. If the other side then says ‘just wait a little longer’, several more months go by. Even if you keep talking, calculate the expiry date separately and be ready to file before then.

If you claimed only part of the property

In its decision 2018Seu18 of June 22, 2018, the Supreme Court held that if only part of the property was claimed for division within 2 years, the right to claim the remaining property expires when the period passes. Filing a lawsuit within 2 years does not protect all the property; only the property claimed is protected.

The same decision said that if property that was not addressed at all in the proceedings is newly discovered after the decision becomes final, an additional claim can be made, but that additional claim must also be made within 2 years of the date of divorce. So it is safer to list all the property you know about when you first file, and to state that you will expand the claim based on the results of the property inquiry for any property still being confirmed.

If you signed a waiver

Signing a statement such as ‘I will not make any claim regarding property in the future’ does not block a claim in every case. Its effect may be judged differently depending on whether it was a statement vaguely waiving rights before the divorce took effect, or an agreement reached after reviewing all the property and completing a settlement. Setting out the date you signed, the property you knew about at the time and how you came to sign can be used to challenge its effect.

If property disappeared in the meantime

If the other side transferred property to someone else to avoid division, you can file a claim to revoke a fraudulent act (사해행위취소) (Article 839-3 of the Civil Act). This lawsuit must be filed within 1 year of learning of the grounds for revocation and within 5 years of the disposal, so you need to keep track of a deadline separate from the 2 years for division of property. If the property has not yet been disposed of, the first step is to apply for provisional attachment or a provisional injunction against disposal along with the claim.

If there is not much time left, the right order is to file first, even if you haven't gathered all the materials, and supplement through a property inquiry. If you learn of hidden property after the 2 years have passed, it is not easy to find another way.