[Column] Divorce Filed by a Spouse at Fault: Common Misconceptions and Legal Realities

  

In divorce consultations, misconceptions about a spouse at fault arise frequently. Many people believe that a spouse who caused the breakdown of the marriage through an affair, violence, malicious desertion, or other conduct can never file for divorce, or that a spouse at fault cannot receive property division and cannot obtain custody. However, actual law and court practice are far more nuanced than what is commonly known. Issues involving a spouse at fault are not simply about deciding who was more blameworthy, but about distinguishing the current state of the marital relationship from the legal nature of each right.

Article 840 of the Korean Civil Act sets out the grounds for judicial divorce. Representative grounds include a spouse’s unchaste act, malicious desertion, serious mistreatment, disappearance for 3 years or more, and other serious reasons that make it difficult to continue the marriage. Where the spouse primarily responsible for the breakdown of the marriage files for divorce, Korean courts do not readily allow such a claim as a general rule. This reflects the basic position known as the fault-based approach.

However, a divorce claim filed by a spouse at fault is not always rejected without exception. The Supreme Court of Korea has taken the position that if special circumstances exist, such as where the marital relationship has broken down beyond recovery for a long period and it is difficult to see that the other spouse has a genuine intention to continue the marriage, a divorce claim by the spouse at fault may exceptionally be allowed (Supreme Court en banc Decision 2013Meu568, Sept. 15, 2015). In such cases, the court considers factors as a whole, including the period of separation, whether the marital relationship has been substantively severed, protection and consideration for the other spouse and children, and whether the refusal to divorce is closer to obstinacy or revenge.

Accordingly, the perception that a spouse at fault can never obtain a divorce is not accurate. At the same time, the fact that exceptions may be recognized does not mean that a divorce claim by a spouse at fault will be easily accepted. Courts still take a cautious approach toward divorce claims filed by a spouse responsible for the marital breakdown, and they also examine the disadvantages the other spouse may suffer as a result of divorce and issues concerning the protection of children.

Another misconception about a spouse at fault concerns property division. Many people believe that a spouse who had an affair or is responsible for the breakdown of the marriage cannot receive property division. However, property division and consolation money are legally separate systems. Consolation money has the nature of damages for responsibility for the breakdown of the marriage, whereas property division is a system for liquidating the marital property formed through the spouses’ cooperation during the marriage. Therefore, even a spouse at fault may, in principle, claim property division if that spouse contributed to the formation or maintenance of property during the marriage.

Conversely, if responsibility for the breakdown of the marriage is recognized against the spouse at fault, a separate issue of consolation money may arise. In other words, the possibility of receiving property division and the possibility of having to pay consolation money can coexist. For this reason, in divorce litigation, it is important to separately argue and prove the contribution ratio for property division and liability for consolation money. An approach based simply on the idea that the other party was at fault and therefore should receive no property is unlikely to be accepted by the court as it stands.

Similar misconceptions exist regarding custody and parental authority. The fact that a spouse had an affair does not necessarily mean that the spouse will lose custody. When determining custody, the court does not focus on punishing the parent’s wrongdoing, but instead applies the best interests of the child as the primary standard. The court comprehensively reviews the child’s attachment relationship with each parent, the current caregiving situation, the stability of the caregiving environment, each parent’s willingness and ability to care for the child, and the child’s age and wishes. Therefore, the fact that a spouse is at fault does not automatically exclude that spouse from custody.

In practice, people often become overly optimistic simply because the other party is the spouse at fault, or, conversely, give up all rights merely because they themselves are the spouse at fault. Divorce litigation, however, is not a simple process of moral condemnation. In actual trials, the court reviews multiple factors together, including the cause and circumstances of the marital breakdown, the period of separation, the process of property formation, the child-rearing situation, and the parties’ economic circumstances. If a case is viewed only through emotional judgment, important legal issues may be overlooked.

In cases involving an affair, when the marital relationship had substantively broken down is also an important issue. The affair itself may be disputed as a ground for divorce or consolation money, but the legal evaluation may differ depending on whether the relationship occurred after the marital relationship had already broken down beyond recovery. In cases connected to lawsuits against an affair partner or claims for consolation money, the timing of the misconduct, the state of the marital relationship, and the other party’s awareness also become issues.

In divorce litigation where fault is disputed, legal review and organization of the facts for each issue are more important than simply arguing over right and wrong. This is because the possibility of filing for divorce, the scope of consolation money liability, the scope of property subject to division and contribution ratio, and issues of custody and child support may each be determined under different standards. In particular, in cases involving significant emotional conflict, the process of organizing facts based on objective materials can play an important role.

Ultimately, the issue of a spouse at fault is not a structure in which the person who did wrong loses all legal rights. The possibility of divorce, consolation money, property division, and custody are each judged under different standards. Therefore, rather than making a conclusion about one’s situation based only on fragmentary information found online, it is necessary to accurately review the current state of the marital relationship, the legal meaning of the fault-based grounds, and the materials required for each issue. If a related dispute is expected, it is important to sufficiently organize the facts and evidence and then prepare a response strategy after legal review. (Seo Young-eun, Attorney, Taelim Goyang Branch Office)

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