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South Korea: Update to KOR38159.E of 27 November 2001 on the possibility for a woman to file for divorce if the husband refuses to appear with the applicant or to consent to the divorce

In correspondence sent to the Research Directorate, representatives from the Embassy of the Republic of Korea in Ottawa and the Embassy of Canada in Seoul both stated that, according to Korean civil law, an individual can file for divorce without the consent of his or her spouse (Embassy of the Republic of Korea 19 Oct. 2004; Embassy of Canada 20 Oct. 2004). According to the Embassy of Canada, article 840 of the Korean Civil Act stipulates the terms for a judicial divorce (ibid.), including the requirement that one of the following reasons be given when filing for divorce: 1) an act of infidelity, 2) extreme neglect or abandonment, 3) extreme mistreatment of spouse, 4) extreme mistreatment of other family members, 5) no contact with spouse for three years and inability to ascertain whether he or she is dead or alive, 6) any other serious reason that makes it difficult for the marriage to continue (ibid.; see also Korealaw.com 29 May 2003).

In regard to the procedure of filing for divorce when one party does not consent, the Embassy of Canada in Seoul provided the following information:

The couple must meet with a "Mediation Committee" and will be given a certain period of time, determined by the committee, within which they must work out their differences or come to a con[s]ensus.

If they reach an agreement within the given period, they will be brought to court to finalise their divorce.

If not, alimony, custody of child(ren), etc. will be determined by the court – a process which may take up to 2-3 years.

The court will then issue a "Confirmation of Divorce" ... so that the divorce can be recorded on the FCR [Family Census Register] (20 October 2004).

A 10 February 2004 Korea Times article reported that the Seoul Family Court, a federal court which makes decisions on family law matters (U.S. Library of Congress n.d.), had granted divorce and child custody to a North Korean defector in South Korea whose husband was in North Korea. In its ruling, the Court maintained that marriages concluded in the North were valid in the South by virtue of the South Korean Constitution's treatment of North Koreans as belonging to the Republic of Korea (Korea Times 10 Feb. 2004). According to the article, the court ruled that it would be "harsh" for the applicant to remain in the marriage since the applicant had not seen her husband in three years and movement of people across the border remained limited (ibid.).

According to the United States Department of State, divorced women in Korea faced social stigma along with limited employment opportunities and difficulties in remarrying (Country Reports 2003 25 Feb. 2004, Sec. 5). A 16 February 2004 Korea Times article also reported that regulators from the Financial Supervisory Service were investigating allegations that divorced women had experienced discrimination when attempting to obtain loans from financial companies. Further information on the investigation could not be found among the sources consulted by the Research Directorate. In 2003, Korea registered a divorce rate of 47.4 percent, one of the highest in the world (Country Reports 2003 25 Feb. 2004, Sec. 5; Korea Times 7 Mar. 2004).

For additional relevant news articles and commentary on divorce in Korea, please see the attached compilation from the International Divorce Law Office at Morley and Trager.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of additional sources consulted in researching this Information Request.

References

Country Reports on Human Rights Practices for 2003. 25 February 2004. United States Department of State. <http://www.state.gov/g/drl/rls/hrrpt/2003/27776.htm> [Accessed 12 Oct. 2004]

United States. n.d. Library of Congress. Country Studies. "South Korea – The Judiciary." <http://countrystudies.us/south-korea/63.htm> [Accessed 21 Oct. 2004]

Embassy of Canada, Seoul. 20 October 2004. Correspondence sent by the Second Secretary.

Embassy of the Republic of Korea, Ottawa. 19 October 2004. Correspondence sent by the Consul.

Korealaw.com. 29 May 2003. "Contested Divorce: Can You Get Divorced Under Korean Law When Your Spouse Does Not Want to Get Divorced? Better Find Out..." <http://www.korealaw.com> [Accessed 14 Oct. 2004]

Korea Times [Seoul]. 7 March 2004. Scott Fallis. "Women in Korean Society." <http://times.hankooki.com/times.htm> [Accessed 19 Oct. 2004]
_____. 16 February 2004. Kim Yon-se. "Divorcees Face Discrimination in Borrowing." <http://times.hankooki.com/times.htm> [Accessed 19 Oct. 2004]
_____. 10 February 2004. "Court Allows Divorce of NK Defector." (Dialog)

Attachment

International Divorce Law Office at Morley and Trager. n.d. "Korea." <http://www.international-divorce.com/d-korea.htm> [Accessed 20 Oct. 2004], 6 pp.

Additional Sources Consulted

Internet sites, including: Amnesty International, Committee on the Elimination of Discrimination against Women, Korea University, Ministry of Gender Equality (Korea), National Library of Korea.