What is International Divorce?International divorce refers to divorce cases that involve foreign elements, such as divorce between a Korean and a foreigner in Korea, divorce between foreigners in Korea, or 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 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 is conducted in Korea and one of the parties is a Korean national, Korean law will apply.
Regarding divorce, Article 37 of the International Private Law provides that the following laws are sequentially applied.
- the same national law of the couple
- the same law of their common residence
- 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.
Additionally, under Article 39 of the International Private Law, 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, the parties can file for mutual divorce under Korean law.
Divorce between Korean and foreign nationals, and foreign national couples
In cases where there is a divorce or dispute between a Korean and foreign national or a foreign national couple that has substantial relations with Korea, the case can be tried in a Korean 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 the Korean and foreign national reside 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 foreign nationals:
If both spouses reside 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, the case can be tried in a Korean court.
If both spouses have different nationalities and reside in different countries, divorce can be granted in a Korean court if Korea is recognized as the country with the closest relationship to the spouses. However, this is only applicable if there is an absence of the other party, abandonment by the petitioner for divorce, 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.
