Is Prenuptial Agreement Valid in Korea?
The Regulation of the Prenuptial Agreement(Prenup) in Korea
Unlike in the US where the prenups are regulated under the separate Uniform Premarital Agreement Act(UPAA) with strong legal effects with focuses on the liquidation of relationship including the property rights and child/spousal support incurred with the divorce, it is generally known that there is no such thing as prenup in Korea. However, it is not exactly the case, for there is so called 'prenup-similar agreement' or 'matrimonial property agreement', regulated by the Civil Act of Korea.
Yet, it is important to note that the prenup-similar agreement in Korea is limited to establishing and registering their respective properties before marriage, so that they can oppose to the third parties including the court when it is necessary. Even though the details of property division in the agreement may not have strict binding effect in the divorce proceedings, it may act as a strong evidence to persuade the judges that the property in question belongs to a party as a separate property. Unless the period of the marriage is long enough, this separate property may act for the favor of registered owner.
In short, in Korea, it is not permissible to give up the right to claim the division of property that has not been specified in accordance with consultation or judgment in advance, before the marriage is dissolved. Therefore, property division due to the divorce shall not be determined by a prenuptial agreement(Supreme Court Decision 2015seu451 Decided January 25, 2016).
However, the existence of such an agreement is expected to be considered as one of the criteria for property division when the court sets the ratio of property division. Therefore, it may be used for the purpose of making it easier to prove respective property.
The Registration of the Prenup-Similar Agreements
It is mandatory that the prenup-similar agreement should be registered before marriage to have legal effect, otherwise the couple shall not be entitled to oppose/claim their right to any third party(Article 829 Paragraph 4 of the Civil Act 'If husband and wife have entered into a contract regarding their property, such contract may not be enforced against a successor in title of the husband or wife or a third party unless it is registered prior to the formation of their marriage').
Moreover, the prenup-similar agreements shall not be modified during marriage period(Article 829 Paragraph 2, of the Civil Act, 'If husband and wife have, prior to the formation of marriage, entered into a contract with respect to their property, such contract may not be altered during the marriage: Provided, That if there is a due reason to alter such contract, it may be altered upon approval of the court).
Registration Process of prenup-similar agreement
(Procedure of Application)
Registration of prenuptial agreement is subject to application of both parties, prior to the establishment of the marriage and the application need to be filed at the registry office having jurisdiction over the address of the husband.
Following documents should be attached:
- Paper of prenuptial agreement
- Husband and wife’s certificate of seal (However, a foreigner who does not have a seal certificate system in his/her home country must submit a certificate of his/her own government office or a fair certificate which proves the signature on the application was signed by him/herself)
- Written proof of non-registration of marriage and address
- Certificate of ID number (However, in the case of foreign nationals or foreigners without ID numbers, a document proving the date of birth)
- In the case of an application for registration by an agent, a document proving the authority
Should you need further assistance in drafting and the registration of the prenup-similar agreement, please do not hesitate to contact us at any time.