What Is "Divorce by agreement(협의이혼)"?
Divorce by agreement, known as "협의이혼" in South Korea, is the process where both spouses mutually agree to end their marriage.
Unlike Divorce by trial, this procedure is based on the consent of both parties and involves fewer proceedings.
It is faster, more straightforward, and typically less emotionally taxing.
However, certain steps and conditions must be met for it to be legally binding, and the court must verify that both parties are fully aware of the decision they're making.
Legal Basis for a Divorce by agreement
According to Article 836 of the Korean CIVIL ACT, the process of Divorce by agreement becomes effective only when the divorce is reported and confirmed by the Family Court.
While both parties may agree to the divorce, legal recognition is required to make it official.
The Family Court's role is primarily to ensure that both parties genuinely wish to dissolve the marriage and file for divorce of their own free will.
Court’s Role in Confirming the Intention to Divorce
The role of the Family Court in Divorce by agreement is limited to confirming that the intention to divorce is mutual.
The court does not examine the reasons behind the couple’s decision, nor does it consider whether there are significant grounds for divorce, such as those required in a Divorce by trial case.
Key Legal Precedent:
In a Supreme Court Decision(대법원 1988. 4. 25. 선고 87므28 판결), the court clarified that the process of confirming the divorce intention does not imply any automatic grounds for Divorce by trial.
Simply confirming that the parties wish to end their marriage does not assume there are severe or irreconcilable differences that would justify a court-ordered divorce.
A notable case in the Seoul Family Court (서울가정법원 2006. 12. 19. 선고 2005드단53135, 2005드단68908 판결)
The wife, despite having no intention to continue the marriage, deceived the husband.
She misled the husband into believing that they might continue their married life if the husband transfers the apartment to her and obtain confirmation of their intention for a Divorce by agreement.
The husband, deceived by her, agreed to the confirmation of the Divorce by agreement with the intent of continuing the marriage.
However, the wife secretly filed for divorce without his knowledge, leading to the Divorce by agreement.
In this case, the court found that the husband's consent to the divorce was obtained through deceit and annulled the Divorce by agreement.
Based on this, the court upheld the husband's subsequent request for Divorce by trial.
Requirements for a Divorce by agreement
To proceed with a Divorce by agreement, both spouses must:
1. Filing an application for the confirmation of intention to divorce:
This is done at the Family Court that has jurisdiction over the couple’s domicile or registration address. Both spouses must be present and provide valid identification.
2. Participate in a confirmation session:
The court verifies that both parties understand the implications of their decision.
3. Complete a mandatory reflection period
: This period differs depending on whether the couple has children
- 3 months, if the couple has children (including unborn children).
- 1 month, if there are no children involved.
Important Note:
If there is evidence of domestic abuse or any urgent need for separation, the court can waive or shorten the reflection period.
Conclusion
Divorce by agreement in South Korea is a relatively simple method for couples who have mutually decided to end their marriage.
However, it requires strict adherence to legal procedures, particularly regarding the confirmation of intentions, child custody, and the reflection period.
With the proper agreements in place, couples can move forward with a legally binding and amicable divorce.
※ All content posted on this blog is intended to provide general legal information. The application of the law may vary depending on the specific circumstances of each case, so please consult with an attorney for detailed legal advice before making any decisions based on the content of this blog. Please be advised that this blog assumes no legal responsibility for any issues that may arise from the use of the information obtained here.
