Claiming reimbursement after paying the compensation

Infidelity by a spouse and the affair partner is treated as a tort they committed together (Civil Act (민법) Article 760). Case law views their liability as an "untrue" joint and several obligation (부진정연대채무) (Supreme Court Decision 2013므2441, rendered May 29, 2015). The plaintiff can claim the full compensation (위자료) from either of the two, and once one pays in full, the relationship with the plaintiff ends.

Next comes settling up between the two. The person who paid everything can claim from the other the part exceeding their own share. This is the right to reimbursement (구상권).

Plaintiffs often claim only against the affair partner and not against their own spouse, so this settling-up issue comes up frequently.

Reimbursement can be claimed only after you have actually paid. If you have only a judgment and haven't paid yet, you can't start with a reimbursement claim. The starting point is that you actually paid more than your share, so be sure to keep transfer records and receipts.

If you are paying in installments, once the amount paid exceeds your share, you claim the excess. Keeping a table of when you paid how much makes this easier.

If you deliberately delay paying the compensation to get reimbursement, late-payment damages keep accruing on the plaintiff's side. Paying the plaintiff as required and then preparing the reimbursement claim results in less loss in the end.

The court decides each person's share based on their degree of responsibility. If responsibility seems similar, it is often put at around half, but it varies with who led the relationship more actively and whether someone hid their marriage when approaching the other. If the unfaithful spouse lied about being married, you can argue that their share is larger.

If you paid less than your share as set by the court, there is nothing to reimburse. For example, if the total compensation is KRW 20 million and the two shares are half each, you can claim the part you paid beyond KRW 10 million.

In the cases below, you cannot claim reimbursement or the amount is greatly reduced. Be sure to check before signing a mediation or settlement agreement.

If the mediation record (조정조서) only says "no further claims will be made in relation to this case" and says nothing about reimbursement, interpretations may differ on whether that wording settles only the relationship with the plaintiff or also bars reimbursement from the spouse. Make the scope clear before signing.

• You agreed in mediation or a settlement agreement not to exercise the right to reimbursement
• The judgment limited the compensation to the defendant's own share
• The unfaithful spouse has also already paid compensation to the plaintiff
• You have no records proving that you paid

For a plaintiff who stays married, reimbursement is an awkward problem. Even if they receive compensation from the affair partner, if the affair partner then seeks reimbursement from the plaintiff's spouse, that money goes back out of the household. So plaintiffs sometimes accept a slightly lower amount in mediation in exchange for a promise not to exercise the right to reimbursement, and defendants use this as a bargaining point.

From the defendant's point of view, waiving reimbursement means bearing the full compensation in practice. Before signing a waiver clause, compare the amount you could recover later with the amount being knocked off now.

If the plaintiff and the affair partner agree in mediation that "the defendant will not exercise the right to reimbursement," the spouse, who is not a party to that mediation, also benefits. Conversely, if a judgment is issued without such a clause, the affair partner can seek reimbursement from the spouse, so the terms are set with the plaintiff couple's household finances in mind.

First, demand it by certified letter (내용증명), stating the amount you paid and the amount to be returned; if the other person doesn't comply, file a lawsuit for reimbursement. It proceeds as a civil case regardless of whether the other person has divorced.

In the lawsuit, you submit the judgment or mediation record on which the compensation was paid and the transfer records showing you actually sent the money. If you have evidence that the other person led the relationship or hid their marriage, you can argue that their share should be considered larger.

• The compensation judgment or mediation record
• Transfer records or receipts for payments to the plaintiff
• Chats showing who led the relationship
• Signs that the marriage was hidden