You may need a consultation if
- When you met, you were told they had been separated for years
- You dated someone whose divorce lawsuit was in progress
- You started seeing each other during the cooling-off period for a divorce by agreement
- The plaintiff was seeing someone else first
- The plaintiff's side says they were "just apart for a while"
Relevant provisions
Civil Act (민법) Articles 750 and 751 (Tort; non-property damage)
For a third party's infidelity to be a tort, it must have infringed on the couple's shared married life. In a marriage that had already broken down, there is no shared life left to infringe, so liability is denied (Supreme Court en banc Decision 2011므2997, rendered November 20, 2014).
Civil Act Article 826(1) (Duties between spouses)
Spouses must live together and support and cooperate with each other, but where they temporarily live apart for a legitimate reason, they must bear with each other. This is the starting point for distinguishing temporary separation from breakdown.
Statutes are summarized. The official Korean text is available at the Korea Law Information Center (law.go.kr).
When the breakdown defense is accepted
The Supreme Court holds that even if a couple has not yet divorced, if their shared married life had broken down in substance and could not be restored, a third party who then has a sexual relationship with one of the spouses does not commit a tort.
The standard is "beyond repair." Leaving home briefly after a quarrel, living apart because of work, or merely having discussed divorce are usually not regarded as a breakdown.
The affair partner must prove it
The third party who argues that the marriage had already broken down at the time of the infidelity (부정행위) must prove it (Supreme Court Decision 2022므13504, 13511, rendered June 27, 2024). This means the plaintiff does not need to prove that the marriage had not broken down.
What the other person's spouse told you is unlikely to count as proof. It is common for people having affairs to say "We're getting divorced soon" or "We've slept in separate rooms for ages."
Evidence that shows breakdown
On the other hand, if the spouse kept sending living expenses or went on family trips even during the separation, breakdown is likely to be denied. Prepare for the plaintiff to submit such evidence by matching everything up period by period.
- Records of a divorce lawsuit being filed, or of an application for confirmation of intent to divorce by agreement
- Records of the date the separation began and of the change of address
- Material showing the period when living expenses and contact stopped
- Signs of the plaintiff's own relationship with someone else
Even short of breakdown, it can be a ground for reduction
Even if a complete breakdown is not recognized, the fact that the marriage had already deteriorated considerably can be considered when compensation (위자료) is set. That is why answers often include both an argument for dismissal and an argument for reduction.
If the relationship began during a divorce lawsuit, the court also looks at what stage the lawsuit was at, whether mediation had failed, and whether there was any chance of the couple reconciling.
How Jisan Law's Family Law Center builds your defense
- 1
Matching the timeline
We line up, in a single table, the date your relationship began and the dates of the plaintiff couple's separation and lawsuit.
- 2
Finding evidence
We look for public records and conversations that show breakdown, and also check what evidence the other person's spouse holds.
- 3
Filing the answer
We put together an argument for dismissal and an alternative argument for reduction, and file within 30 days.
- 4
Hearings and mediation
We rebut the contrary evidence submitted by the plaintiff, and in mediation we negotiate confidentiality and no-further-claims clauses.
Lawyers handling these cases
Hansol Kim Managing Partner
Former prosecutor at the Incheon District Prosecutors' Office, the Ansan Branch of the Suwon District Prosecutors' Office and the Hongseong Branch of the Daejeon District Prosecutors' Office
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Miso Kim Partner
Formerly at Daehwan Law Firm, in-house counsel on the legal team of Wemade Co., Ltd., and Oracle Law Firm
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Frequently asked questions
We met after a divorce lawsuit had already been filed. Am I still liable?
Filing a lawsuit does not by itself establish a breakdown. The court also looks at how far the lawsuit had progressed, whether the couple still lived together and whether there was room for reconciliation. Start by matching the filing date against the date your relationship began.
The other person said they were divorced and even showed me documents.
This is closer to arguing that you didn't know about the marriage than to the breakdown defense. If there were circumstances that would deceive anyone, intent or negligence may be denied, so keep photos of the documents shown to you and the related chats.
The plaintiff was also having an affair.
The plaintiff's affair can support the claim that the marriage had already broken down, or be a ground for reducing compensation. However, it does not by itself make your liability disappear, so you need to show its timing and extent with evidence.