What is International Divorce in Korea? Divorce by Agreement

What is International Divorce in Korea?

International divorce refers to divorce cases that involve foreign elements, such as a divorce between a Korean and a foreigner in Korea, a divorce between foreigners in Korea, or a divorce between a Korean and a foreigner in a foreign country.

Choice of Law for International Divorce

In the case of international divorce, the law that applies must be determined from among the laws of the various countries involved, and this is called the choice of law.

Under Article 36 of the Korean International Private Law, the requirements for the validity of marriage are governed by the national law of each party, and the formalities of marriage are governed by the law of the place of celebration or the law of one party’s country. However, if the marriage took place in Korea and one of the parties is a Korean national, Korean law will apply.

Regarding divorce, Article 37 of the International Private Law in Korea provides that the following laws are sequentially applied.

1. the same national law of the couple. (or)
2. the same law of their common residence. (or)
3. the law of the place most closely related to the couple

If there is a mutual divorce agreement system in the jurisdiction of the applicable law, the parties may use it. In Korea, foreigners can agree to divorce with the agreement, and even if one party nor the couple are not in Korea, based on the agreement, parties can get divorced in a Korean Family court.

Additionally, under Article 39 of the International Private Law in Korea, if one of the parties is a Korean national and has a residence in Korea, Korean law will apply as the choice of law for divorce. Therefore, even the one party is a foreigner, the parties can file for divorce under Korean law. It can be an amicable divorce, mediation divorce, or divorce lawsuit.

Divorce between Korean and foreign nationals, and foreign national couples

In cases where there is a divorce or dispute between a Korean and a foreign national or a foreign-national couple that has substantial relations with Korea, the case can be tried in a Korean court

In a divorce lawsuit in a Korean Family court, if both spouses have the same nationality, the law of that country will be applied. If they have different nationalities but live in the same country, the law of the country in which they reside will be applied. If the spouses have different nationalities and live in different countries, the law of the country that has the closest relationship with the spouses will be applied.

In the case of a Korean and foreign national couple

• If both a Korean and a foreign national residing in Korea, divorce can be granted under Korean law in a Korean court
• If one of the spouses is a Korean residing in Korea, divorce can be granted under Korean law.
• If only the foreign national spouse resides in Korea while the Korean spouse resides in a foreign country, divorce can be granted under Korean law if Korea is recognized as the country with the closest relationship to the couple.

In the case of both spouses being foreigners

For foreign couples residing in Korea, divorce can be granted under the law of their common home country in a Korean court.

If both spouses are foreign nationals with the same nationality and one resides in Korea while the other resides in a foreign country, the law of their common home country will be applied. However, if there is an absence of the other party, abandonment by the petitioner for divorce, or active response by the spouse residing in a foreign country, Korean law can be applied in foreign divorce.

If both spouses have different nationalities and reside in different countries but not Korea, divorce can be granted in a Korean court if Korea is recognized as the country with the closest relationship to a marriage or divorce. In this case, if there is an absence of the other party, abandonment by the petitioner for divorce, an active response by the spouse residing in a foreign country, and if it is deemed reasonable to have a close relationship with Korea based on rational standards, Korean law can be applied in divorce.