Basic Rule 1. Which proceedings should foreign husband and wife residing in Korea follow for divorce?

Foreign husband and wife residing in Korea who want divorce may get a divorce at the Family Court in Korea (in any area that has no family court, the divorce proceedings may be taken at the relevant district court).

Divorce in Korea is composed of the following two (2) types:(1) divorce by mutual agreement and (2) judicial divorce. The divorce by mutual agreement is available only when both husband and wife are Korean. If either husband or wife is a foreigner, they may get a divorce only by the judicial divorce.
The Judicial divorce under the Korean law consists of 1)divorce through mediation procedure and 2)divorce litigation. In the event that foreign husband and wife agree upon the intention to get a divorce and conditions of divorce, the divorce mediation proceedings are available. Otherwise, they shoud get a divorce through litigation procedure.

Basic Rule 2. Is the divorce by the Korean court recognized effective in their own country?

Generally, the validity of divorce performed in a duly way in any country is recognized in their own country.  If foreign husband and wife get a divorce lawfully at the Korean court through judicial divorce procedure under the Korean law, the divorce may be also recognized effective in their own country.

1. In the event husband and wife agree upon the intention to get a divorce and conditions of divorce

1-A. When both husband and wife are foreigners and reside in Korea

(Situation)
We, Canadian husband and wife residing in Korea, have agreed to get a divorce. We are going to stay in Korea for the future three (3) years and seek to take proceedings for divorce in Korea. We have no child and have agreed upon property division.

Q 1) In Canada, the separation period is essential for divorce. Is such also required in Korea?

If Canadian husband and wife get a divorce in the manner recognized in Korea, the validity of divorce may be recognized in Canada. The Korean law does not require the separation period as a prerequisite of divorce and, thus, it is unnecessary for Canadian husband and wife who go through the divorce proceedings in Korea to have the separation period.

Q 2) Which proceedings will be taken and how much time will it take for divorce?

If husband and wife agree upon the intention to get a divorce and conditions of divorce, it is the most convenient to get a divorce according to the ‘divorce mediation’ proceedings at the Family Court in Korea. The divorce by the divorce mediation means the one through the court’s mediation proceedings, which is simple and ends quickly.

Once either husband or wife files an application for divorce mediation, the court generally decides the date of hearing within one (1) or two (2) months therefrom. If both of husband and wife are present at the court on the hearing date and confirm their intention and conditions of divorce to the judge, they get a divorce on the same date.

In these proceedings, generally, either husband or wife appoints a Korean lawyer as his/her attorney-in-law and the Korean lawyer and the other party are present at the court on the date of divorce mediation for confirmation of their intention.

Thereafter, the court sends husband and wife an ‘Divorce ruling’ which has the same validity as the Court judgment. In case foreigners want to report or register the divorce in their own country, they can do that by submitting this divorce ruling after translation and notarization to the authorities concerned in their own countries.

The divorce mediation proceedings in the Korean court is very simple and fast in that those take only one (1) to two (2) months from the application until the mediation date and require only mutual agreement of husband and wife.

However, the divorce mediation procedure may be available only to the extent both of husband and wife agree upon the intention to get a divorce and conditions of divorce. If they fail to reach such an agreement, please note that it is impossible to use the divorce mediation proceedings.

Q 3) What are the documents required?

The required documents are certificate of marriage, copy of passports and certificates of alien registration of both husband and wife (only to the extent alien registration has been made), and agreement on divorce (signed by both husband and wife). The application for divorce mediation will be submitted to the Korean Family Court, together with the required documents set forth above.

1-B. When both husband and wife are foreigners and any one of them stays overseas

(Situation)
I am an Italian residing in Korea.  My wife is an African who left home one (1) year ago and is currently staying in London.  I have agreed to divorce my wife and am looking for an easy way for divorce.  Since divorce in Italy takes so long time, I hope to get a divorce in another country.

Q 1) Is there any way to get a divorce in the Korean court without my wife coming into Korea?

Even though either husband or wife stays overseas, if husband and wife agree upon the intention to get a divorce and conditions of divorce, they may get a divorce at the Korean court without the foreign resident coming into Korea.

To follow this way, Husband or wife staying overseas appoints a Korean lawyer as his/her attorney-in-law and applies for divorce mediation procedure at the Korean Family court through his/her attorney-in-law. Then, the Korean lawyer and the other residing in Korea are present at the court on the hearing date for confirmation of their intention to get a divorce. In such way, divorce proceedings may be easily and quickly performed without his/her spouse staying overseas coming into Korea.

In order for the spouse staying overseas to appoint his/her Korean lawyer, he/she should obtain notarization of a power of attorney for the Korean lawyer in the country where he/she resides and send it to the Korean lawyer by e-mail or air mail.

Q 2) Which proceedings will be taken and how much time will it take for divorce?

Husband and wife get a divorce according to the divorce mediation proceedings in Korea which will take one (1) to two (2) months from the date of filing of the application for divorce.

Q 3) What are the documents required?

The required documents are certificate of marriage, copy of passports and certificates of alien registration of both husband and wife (only to the extent alien registration has been made) and agreement on divorce (signed by both husband and wife).

Since the intention of the spouse staying overseas to get a divorce should be certified in writing, the spouse should obtain notarization of the agreement on divorce and a power of attorney for the Korean attorney in the country where he/she stays and then send them to the office of the Korean lawyer by e-mail or air mail.

1-C. When either husband or wife is a Korean and the other is a foreigner and both of them reside in Korea

In this case, they may get a divorce by the ‘immediate mediation for foreigners’ system of the Family Court.  Under this immediate adjustment for foreigners system, either husband or wife, a Korean, and the other, a foreigner, who agree to get a divorce may get a divorce quickly.

Under this system, if the application for divorce mediation is filed before 14:00 p.m. of each day, the responsible judge confirms their divorce at 16:00 p.m. of the same day and they get a divorce; provided, however, that this system is applied only when any one of husband and wife is a foreigner and both of them agree upon the intention to get a divorce and conditions of divorce and, thus, is unavailable when both of them are foreigners or fail to agree to get a divorce.

1-D. When either husband or wife is a Korean and the other is a foreigner who stays overseas

Even in the event a foreign spouse does not stay in Korea, it is possible to get a divorce by the immediate mediation for foreigners system of the Family Court if they agree to get a divorce; provided, however, that in order for the foreign spouse to get a divorce without coming into Korea, he/she should appoint a Korean lawyer as his/her attorney-in-law who should be present at the court on the date of such immediate adjustment, together with the Korean spouse, for confirmation of his/her intention to get a divorce.

2. When either husband or wife is missing

(Situation)
I am a U.S. citizen living in Korea.  I had lived with my wife, a Filipina, in Korea who returned to the Philippines two (2) years ago.  Currently, I am unaware where she is and even unable to contact her.  I hope to marry another woman.  Can I get a divorce at the Korean court even though I don’t know the whereabouts of her?

Q 1) Even when either husband or wife is missing, is it possible to get a divorce at the Korean court?

In order for husband and wife both of whom are foreigners to get a divorce at the Korean court, in principle, the defendant’s address (residence) should be in Korea. However, in the event the defendant is missing in the divorce litigation, such principle is not applied and, thus, it is possible to get a divorce.

Q 2) Which proceedings will be taken and what are the documents required?

Either husband or wife should file a divorce suit against the other who is missing with the Family Court in Korea.
The documents required are as follows: Certificate of marriage, passport and certificate of alien registration of the plaintiff (only to the extent alien registration has been made), evidence proving that the defendant is missing (arrival-departure record, statement of the person who is aware of the defendant’s missing, etc.), etc. Once the divorce suit is filed, the Family Court in Korea proceeds with the divorce suit through the service of process system and finally renders the judgment of divorce. It will take approximately six (6) months to one (1) year.