Definition of International Divorce
International divorce refers to divorce cases that involve foreign elements, such as divorce between a Korean and a foreign national in Korea, divorce between foreign nationals in Korea, divorce between a Korean and a foreign national abroad, and divorce between foreign nationals abroad.
Applicable Law in International Divorce = 대체 Governing Law of International Divorce
The applicable law in international divorce
Governing Law of International Divorce(링크) refers to the specific laws applied to the international divorce case. In the case of an international divorce, the international judiciary first applies the same national law of the spouses, and if there is no such law, it applies the same law of the spouses’ common habitual residence. If there is no such law, the law of the place most closely related to the spouses is applied as the applicable law. However, if one of the spouses is a Korean national residing in Korea, Korean law is applied.
Consensual International Divorce
Consensual divorce in Korea
Before the revision of international law, consensual divorce between a Korean and a foreign national was impossible for American, British, French, and German husbands because the applicable law was the husband’s national law. However, with the revised international law, if one of the spouses is a Korean national residing in Korea, Korean law can be applied as the applicable law, making consensual divorce possible. Additionally, consensual divorce in a foreign country is also valid, and the divorce can be reported to the Korean authorities.
Consensual divorce abroad
If both spouses are Korean nationals residing in a foreign country, they do not need to return to Korea to receive confirmation of their intention to divorce from a Korean court. Instead, they can apply for confirmation of their intention to divorce at the Korean embassy or consulate in their country of residence and receive a divorce confirmation certificate from the Seoul Family Court. They can then report the divorce to the embassy or consulate where they applied for confirmation.
If one spouse is a Korean national residing abroad, the spouse in Korea can apply for confirmation of their intention to divorce at the Seoul Family Court, or the spouse abroad can apply for confirmation at the embassy or consulate in their country of residence. After receiving confirmation from the Seoul Family Court, the spouse in Korea can report the divorce to the administrative office, or the spouse abroad can report the divorce to the embassy or consulate in their country of residence to finalize the divorce.
International Divorce Proceedings (Difference between Korean and Foreign Courts)
divorce in a Korean court
In order to obtain a divorce judgment in a Korean court in an international divorce case, the Korean court must first have jurisdiction over the case. International law states that “a Korean court has jurisdiction if the parties or the dispute have substantial connections to Korea.” In this regard, court precedents generally adopt the defendant’s address as the principle.
When filing for divorce in a foreign court
A divorce judgment from a foreign court must meet certain conditions in order to be recognized in Korea. Article 217 of the Civil Procedure Act states that a foreign court’s final judgment will be recognized if it satisfies the following four requirements:
① The international jurisdiction of the foreign court must be recognized based on Korean law or treaties.
② The defendant who lost the case was given sufficient time to defend himself/herself, either by receiving official notices or by responding to the lawsuit even if he/she did not receive such notices.
③ The recognition of the judgment does not violate Korea’s public policy or social order.
④ There is mutual guarantee.
All four requirements must be met for the judgment to be recognized in Korea.
Divorce declaration
Once a divorce judgment has been confirmed through a divorce lawsuit, one of the spouses must file a divorce declaration within one month of the mediation or the confirmation of the trial date. The divorce declaration should include a copy of the court’s judgment and confirmation of the divorce and must be submitted to an embassy or consulate abroad, or to a local government office with jurisdiction over the place of registration or address.