For marriage migrants considering divorce from a Korean spouse

Before deciding to divorce, check the following.

• Your current status of stay and its expiry date
• Why and when the marriage became difficult (violence, leaving home, failure to pay living expenses, an affair, etc.)
• Evidence showing those reasons (messages, police reports, medical certificates, photos, money transfer records)
• Whether you have children with your Korean spouse, and who is raising them now
• Property you built up together and property in each spouse's name

There are three types of marriage migrant (F-6) status. Item (a) (가목) is for the spouse of a Korean national; item (b) (나목) is for a parent raising a child born from a marriage with a Korean national; and item (c) (다목) is for a person who cannot maintain the marriage because of the spouse's death or disappearance or other reasons they are not responsible for.

The Supreme Court interprets 'reasons they are not responsible for' in item (c) as cases where the Korean spouse is mainly responsible for the breakdown of the marriage. The foreign spouse does not have to be completely without fault (Supreme Court Decision 2018Du66869, July 4, 2019). If you are raising a child, item (b) is also considered.

A divorce by agreement (협의이혼) is quick, but there is no record of whose responsibility the breakdown was. To stay under item (c), you must prove that responsibility separately, which can be difficult. If the court recognizes the Korean spouse's responsibility in a judicial divorce (재판상 이혼), that finding is in principle respected in immigration reviews and lawsuits.

A divorce from a Korean spouse who lives in Korea is governed by Korean law (Act on Private International Law Article 66). Along with the divorce, you can claim compensation for emotional distress, division of property, designation of the person with parental authority and the custodial parent, and child support.

If the child lives in Korea, Korean courts can handle cases on parental authority and custody (Act on Private International Law Article 59). The fact that you are actually raising the child is important both in designating the custodial parent and for marriage migrant (F-6) item (b) status. Collect evidence showing who took care of the child's school, hospital visits and living expenses.

You can claim division of property built up together during the marriage even if it is in your spouse's name, and you can claim compensation for emotional distress from the spouse responsible for the breakdown of the marriage. If there is a risk that your spouse will hide or dispose of property, we first consider a provisional attachment or provisional injunction.

If there is domestic violence, report it to the police and get help from a counseling center or shelter. A marriage migrant who has an investigation, trial or protection procedure in progress because of domestic violence can receive extensions of stay until the procedure ends (Immigration Act Article 25-2). Police report records and medical certificates are used both for your stay and in the divorce lawsuit.

Jisan Law looks at the divorce lawsuit and your immigration situation together. We organize evidence showing responsibility for the breakdown of the marriage and pursue a judicial divorce, and we prepare your application for an extension of stay or change of status in step with the divorce proceedings. If your stay is refused, we continue with an administrative appeal and lawsuit based on the divorce judgment. Consultations are available in English.