Article 840 (Causes for Judicial Divorce) 조문단위 인쇄

Either husband or wife may apply to the Family Court for a divorce in each case of the following
subparagraphs: <Amended by Act No. 4199, Jan. 13, 1990>

1. If the other spouse has committed an act of unchastity;

2. If one spouse has been maliciously deserted by the other spouse;

3. If one spouse has been extremely maltreated by the other spouse or his or her lineal
ascendants;

4. If one spouse's lineal ascendant has been extremely maltreated by the other spouse;

5. If the death or life of the other spouse has been unknown for three years; and

6. If there exists any other serious cause for making it difficult to continue the marriage.

Article 841 (Extinction of Right to Apply for Divorce due to Unchastity) 조문단위 인쇄

With respect to the cause mentioned in subparagraph 1 of Article 840, if the spouse has given a previous
consent or an ex post facto tolerance to the other party, or if six months have passed since the spouse
was aware of such act of unchastity of the other, or if two years have passed since the happening of
such event, the spouse may not apply to the court for a divorce.

Article 842 (Extinction of Right to Apply for Divorce due to Any Other Reason) 조문단위 인쇄

With respect to the cause as provided in subparagraph 6 of Article 840, one spouse may not apply to the
court for divorce after the lapse of six months since the day when the spouse became aware of such
cause, or after the lapse of two years since such cause has occurred.

Article 843 (Provisions to be Applied Mutatis Mutandis) 조문단위 인쇄

Article 806 shall apply mutatis mutandis to the claims for damages from a judicial divorce, Article 837 to
the responsibility of parenting children following a judicial divorce, Article 837-2 to the visitation rights
following a judicial divorce, Article 839-2 to the claim for division of property following a judicial divorce,
and Article 839-3 to the right to cancel a fraudulent act for the purpose of preserving the claims for
division of property following judicial divorce.

[This Article Wholly Amended by Act No. 11300, Feb. 10, 2012]

In the case examined by the Court, a husband filed for divorce against his wife; both spouses are
in their sixties and have been living apart for about 15 years. The husband has a daughter with
another woman and has been living with them as a family during these years. (Lee, supra.)
The vote among the Supreme Court justices who decided the case was close, at seven to six in
favor of denying the filing of divorce. The majority found that “[w]hen the spouse who is
responsible for breaking up the marriage asks for a divorce on the grounds of that marriage
breaking up, that’s a violation of the principle of good faith.” (Id.) The Court also took into
account the gender equality issue. In Korea, many women have difficulty supporting themselves
and raising their children after divorce. (Id.) Therefore, it seems that the justices chose not to
make getting a divorce easier by allowing at-fault spouses to file divorce suits.

The Supreme Court also noted that the decision does not entirely rule out divorce initiated by the
at-fault spouse. The Court stated that courts could allow that type of divorce in special
circumstances, such as when enough time has passed that the guilt of the spouse at fault and the
mental pain of the other spouse have faded, by taking into account the degree of responsibility of
the spouse at fault, the will and feelings of the other spouse, the period of separation, and the
extent to which the other spouse’s lifestyle can be maintained. (Id.) In addition, in Korea, a
couple can divorce by mutual consent, without court proceedings. (Civil Act art. 834.) Therefore,
an at-fault spouse can ask for a divorce outside the judicial process and can divorce as long as the
other spouse agrees.

Korean family law attorneys expect that Korea will move to a no-fault divorce system in the
future. (Lee, supra.) Earlier this year, the Constitutional Court decided that a law that made
adultery a crime was unconstitutional. (Sayuri Umeda, South Korea: Criminal Provision on
Adultery Held Unconstitutional, GLOBAL LEGAL MONITOR (Mar. 24, 2015).)