Divorce by Mutual Agreement?
Instead of going through a long court litigation for divorce which usually takes more than 6 months to more than a year, the parties may seek a divorce by an agreement with much simpler procedure, with the confirmation of their intent by the Family Court in Korea.
There are more than 2 million non-Korean citizens living in Korea, but not much information on divorce is readily available in English. So on this post, we would like to share more information on the subject of divorce.
Dissolution of Marriage by Agreement vs. Conciliation
The husband and wife may dissolve their marriage by agreement if a mutual agreement is reached on divorce and on the custody of their minor children(including A. Decision on the custodian, B. Child support and C. Visitation right and methods thereof), if there is any(Article 834 and Article 837 of the Civil Act). Yet, the husband and wife must attend and submit together to the family court for the submission of the application form as well as for the confirmation of intent process.
Therefore, if they do not want to meet each other face to face and have their legal representatives take cake of the matter on their behalf, filing a petition for divorce to court and applying to court for conciliation(Article 50 of the Family Litigation Act) might be a better choice. Further, if the agreement is made during conciliation stage, even the period of deliberation seen below is not required, and even the direct civil execution is possible based on the court judgement when the agreement is not abide by.
How to Get Divorced by Mutual Agreement
As seen above, it is mandatory that the husband and wife attend and submit together to the family court the application form and this application cannot be done by proxy or attorney. However, if one of the parties is staying abroad, the other may submit the application by bringing evidence of his intent of divorce through the head of the overseas diplomatic office, without the attendance of the other party(Article 74 of the Decree on the Registration of Family Relations).
From the day husband and wife are guided by court, they must have a 'period of deliberation' for 'one month' if they do not have a minor child, or 'three months' if they do(Article 836-2 Paragraph 2 of the Civil Act). However, when there are such urgent circumstances to proceed a divorce as the party's unbearable suffering may be expected due to domestic violence, family court is able to shorten or exempt such period(Article 836 Paragraph 3 of the Civil Act).
Only after this period of deliberation, the parties may have the confirmation of intention to divorce. The parties need to bring their own identification to attend the court on this day. It is important to note that the divorce by agreement shall officially take effect upon reporting within three months, and when this period has elapsed, the confirmation by the family court shall be invalid. According to Supreme Court precedents, husband or wife can waive each of their own intention to dissolve their marriage till the divorcement come into effect even though they already have got the confirmation from the court (Supreme Court Decision 93Do2869 Decided February 8, 1994). However, if the other’s divorce report is submitted already, withdrawal is impossible.
A. Written agreement of divorce is needed to be submitted. (Formation can be downloaded on Supreme Court website (www.scourt.go.kr) or available at the court filing window), B. A certification of family relations and a certificate of marriage, C. A copy of resident registration, and D. the husband and wife who have children need to be cared shall submit the documents of an agreement about parental decision on the custody.
It is very important to note that that the claim for division of property shall be extinguished after two years have passed from the date of divorce(Article 839-2, Paragraph 3 of the Civil Act).
Thank you, and please do not hesitate for contact us for further questions.