Sunday, August 25, 2013

3. When husband and wife fail to agree upon the intention to get a divorce and conditions of divorce

I am a British living in Korea.  Since my wife, a Korean, drinks alcohol a lot and frequently made an assault upon me, I want to get a divorce, but she doesn’t.  I want to know how I can get a divorce in Korea.

Q 1) My wife refuses to get a divorce, but I want to divorce my wife. How can I get a divorce?

In the event she does not agree to get a divorce, husband may get a divorce by filing a divorce suit with the Family Court in Korea and obtaining the judgment of divorce from the court.

Q 2) Which country’s law will be applied to the divorce suit in this case?

In the event a couple of international marriage files a divorce suit, the following will be applied: (1) laws of identical home country of husband and wife, (2) laws of identical country in which they have their habitual residence and (3) laws of the place having the closest relation with husband and wife.

However, in the event either husband or wife is a Korean having habitual residence in Korea, the divorce suit should be in accordance with the Korean law (Article 39 of the Private International Law). Accordingly, for the divorce suit between a British husband and a Korean wife residing in Korea, the Korean law will be applied.

Q 3) What is required for winning the divorce suit and how much time will it take for the suit?

Under the Korean law, either husband or wife should prove that his/her spouse has the cause of judicial divorce in order to win the divorce suit. The causes of divorce prescribed by the Korean law are as follows: (1) his/her spouse’s unfaithful act, (2) his/her spouse’s intentional neglect, (2) when he/she received extremely unfair treatment from his/her spouse or lineal ascendant of the spouse, (4) when his/her lineal ascendant received extremely unfair treatment from his/her spouse, (5) when his/her spouse’s fate is unknown for three (3) years or more, or (6) when there is any material cause due to which is difficult to maintain marriage.

Under the Korean law, your wife’s assault is considered as the case ‘when either husband or wife received extremely unfair treatment from his/her spouse’ as set forth in (3) above. In order to get a judicial divorce from wife, you should submit with the court evidence of your wife’s assault - photographs, moving picture and statement of witnesses showing the scene of assault or injury, etc., or record of criminal accusation due to assault.

Q 4) I purchased a house in my wife’s name during marriage life for ten (10) years. Whenever we quarreled, she used to tell me that she would sell the house and have all the amount of such sale. Upon divorce, can I have the right to property division with respect to the house?

According to the Korean law, properties obtained jointly by husband and wife during marriage life are subject to property division upon divorce and, thus, you may have the right to property division with respect to the house registered in your wife’s name.

In order to prevent your wife from disposing of the house at her own discretion and to get property division on a safe basis, you should file a petition for preliminary attachment or disposition preventing from such disposition before filing the divorce suit. Such preliminary attachment or disposition will take two (2) to three (3) weeks.

Q 5) I have a son of eight (8) years. Since my wife does not care him well, I want to have child custody of my son. Is it possible?

In order to have child custody of your son, you should also file a claim for designation as custodial parent at the time of bringing the divorce suit. Upon designation of custodial parent, the Korean family court considers child’s welfare as the most important criteria.

Practically, if mother asserts child custody of a very young child, there is very much possibility for mother to be custodial patent unless she has any special disqualification. When a child is more than fifteen (15) years old, the court respects the child’s intention.

Therefore, in this case, if mother asserts child custody of your son, you should prove special reason why mother should not be custodial parent, but such proving is very difficult in general. In reality, it is hard for father to have child custody.