Cross-border
Matters

• One spouse is habitually resident in Korea, and Korea was the couple’s last common habitual residence.
• The plaintiff and the minor children are habitually resident in Korea.
• Both spouses are Korean nationals.
• The plaintiff is a Korean national habitually resident in Korea and seeks a divorce only.

Two foreign nationals who both live in Korea can also divorce here. Nationality alone is not enough; residence is what matters.

If the couple has property in Korea, filing in Korea is usually the better choice. A Korean court can divide the property in the same proceeding, and enforcement against Korean assets is straightforward.

Even in a Korean court, the law governing the divorce is determined in this order: the spouses’ common nationality; if none, their common habitual residence; if none, the country most closely connected with the marriage.

There is one important exception. If one spouse is a Korean national habitually resident in Korea, Korean law applies. In practice this means Korean law governs most international divorces heard in Korea.

A marital property agreement exists in the Civil Code, but it must be registered before the marriage is registered, it governs management of assets during the marriage rather than division on divorce, and a waiver of the right to claim property division is invalid. Property division on divorce is decided by the court, case by case.

The starting rule is that separate property — assets brought into the marriage, inherited or received by gift — is excluded from division. The court may nevertheless include it where the other spouse contributed to preserving or increasing it, and the longer the marriage, the more likely that is. Shares are commonly in the range of 30 to 50 percent to the non-titled spouse, depending on the length of the marriage, each spouse’s contribution and the size of the estate.

Assets held abroad are included in the division if they belong to a spouse. The practical difficulties are disclosure and valuation, and we have experience with both, including court-ordered appraisal of foreign private companies.

In addition, the Family Court can issue an order for performance; repeated non-compliance can lead to a fine or, for property division and child support, detention of up to thirty days. Child support can also be collected directly from an employer.

Against assets outside Korea, enforcement depends on recognition of the Korean judgment in the foreign country. Korea is a party to the Hague Service Convention, and Korean family judgments are regularly recognised in the United States, Australia, Japan and elsewhere. We work with local counsel in the relevant country for that step.

To enforce a foreign money judgment against Korean assets, a Korean court must first grant an execution judgment. A foreign divorce is reported to the Korean family registry once these conditions are met.

Return applications are heard by the Seoul Family Court. Custody and visitation in Korean proceedings are decided on the child’s welfare; the child’s own view is heard where the child is old enough to express it. Child support is assessed using guidelines published by the Seoul Family Court, based on the parents’ combined income and the child’s age.