Divorce Claims by the Spouse at Fault

In its en banc decision of September 15, 2015 (2013므568), the Supreme Court kept its existing position that, in principle, a divorce claim by the spouse at fault (유책배우자) is not allowed. Its reasons were that Korea offers divorce by agreement, so even the responsible spouse can persuade the other to divorce, and that allowing divorce based on breakdown alone, without a system to secure the other spouse's livelihood after divorce, could result in that spouse being forced out unilaterally.

So a spouse who had an affair and left home will have difficulty getting a divorce judgment just by arguing that 'the marriage is over anyway'. The issues in the lawsuit come down to who broke up the marriage, and whether the case falls under one of the exceptions below.

The same decision said that divorce may be allowed as an exception if there are special circumstances in which the responsibility no longer remains to an extent that should block the divorce claim. The court looks broadly at the nature and degree of the responsibility, the other spouse's intention to continue the marriage, the ages of both spouses and the length of the marriage, the length of the separation and life after it, how the other spouse's livelihood will be secured after divorce, and the situation of any minor children.

In a decision of June 16, 2022 (2021므14258), the Supreme Court said that the other spouse's intention to continue the marriage should not be judged only by what is said in the lawsuit, but objectively, by looking at what efforts were actually made to repair the relationship.

• When the other spouse also has no intention of continuing the marriage but refuses only the divorce out of emotion
• When the spouse at fault has steadily sent living expenses and child support and shown consideration to the other spouse and children, enough to offset the responsibility
• When so much time has passed that weighing the degree of responsibility has become meaningless

If you want to keep the marriage, you need to show that intention in both words and actions. Agreeing to couples counseling recommended by the court, keeping in contact about the children, and keeping records of requests for living expenses all support your intention to continue the marriage. Conversely, if you have only blamed the other spouse and cut off communication, that can be used against you when the court judges the exceptions.

However, no one can be sure how the lawsuit will end, so we also consider whether to make alternative claims for compensation for emotional distress (위자료), property division and child-rearing arrangements in case the divorce is granted.

If you bear the responsibility, agreement is often a more realistic path than a lawsuit. The 'protection and consideration' the case law speaks of shows in whether you faithfully sent living expenses and child support during the separation, and whether you proposed a property settlement that would allow the other spouse to live after the divorce.

Many cases are also hard to see as one spouse's fault alone. If the other spouse also engaged in conduct such as verbal abuse or a long period of coldness, we can organize those circumstances in time order and argue that both spouses share responsibility.