Nullity of Marriage When the Civil Act of the Republic of Korea is the Applicable Law
Causes for nullity of marriage
- A marriage is null and void where there is no agreement to marry between the parties (Article 815 of the Civil Act).
Litigations over nullity of marriage
- Conciliation is not required to institute the litigation over a nullity of marriage. The Family Litigation Act defines jurisdiction, persons entitled to institute the litigation over nullity, other party to a litigation, etc. (Article 2 (1), Articles 22 through 24, and Article 50 (1) of the Family Litigation Act).
Effect of nullity of marriage
- Effect on the parties to a marriage
· Once a marriage becomes null and void, the parties to the marriage are deemed not to have been husband and wife from the beginning. Inheritance and any alteration in rights relating to the marriage status become null as well.
· When a marriage has been dissolved between parties, one party may claim against the other party in negligence the mental or property damages therefrom (Articles 806 and 825 of the Civil Act).
- Effect on children
· Children of the parties are deemed children born out of wedlock (Article 855 (1) of the Civil Act).
Annulment of Marriage When the Civil Act of the Republic of Korea is the Applicable Law
Causes for annulment of marriage
- The parties to a marriage may file a lawsuit in court to annul their marriage if it falls under any one of the following subparagraphs
1. Where any of the parties to a marriage has not attained the marriageable age (18 years of age) (Article 807 and Subparagraph 1 of Article 816 of 「Civil Act」);
2. Where consent has not been obtained for a marriage requiring consent (Article 808 and Subparagraph 1 of Article 816 of 「Civil Act」);
3. Where the marriage constitutes a consanguineous marriage (Article 809 and Subparagraph 1 of Article 816 of 「Civil Act」);
※ Such cases become the causes for annulment of a marriage if they do not fall under any of the causes for nullity of marriage.
4. Where the marriage is a bigamy (Article 810 and Subparagraph 1 of Article 816 of 「Civil Act」)
5. Where, at the time of marriage, one of the parties was unaware that the other party had been suffering from a malignant disease or had any other serious reason which would make marital life unable to continue (Subparagraph 2 of Article 816 of 「Civil Act」);
※ No claim for annulment of marriage may be made after six months lapse from the day one of the parties becomes aware of the cause thereof.
6. When a marriage has been made under fraud or duress (subparagraph 3 of Article 816 of the Civil Act).
※ No claim for annulment of a marriage by fraud or duress may be made, if three months have elapsed from the day where the party discovered the fraud, or became free from said duress.
Claimant for annulment of marriage
- The following parties may claim for annulment of a marriage (Articles 817 and 818 of the Civil Act).
1. Where consent has not been obtained for a marriage requiring consent or any of the parties to the marriage does not attain the marriageable age: Either party or legal representative
2. Where the marriage constitutes a consanguineous marriage: Either party, their lineal ascendants or collateral blood relatives within the fourth degree of relationship
3. Where the marriage constitutes bigamy: The principal, his/her spouse, lineal ascendants, collateral blood relatives within the fourth degree of relationship or a public prosecutor
- A person who wishes to file a lawsuit to annul a marriage in family court must first make a request for conciliation (Item (b)(ii) of Subparagraph 1 of Article 2(1) and Article 50(1) of 「Family Litigation Act」).
Effect of annulment of marriage
- Non-retroactivity of effect
· Once the annulment of a marriage has been determined by the court, it takes effect for the future and shall not be retrospectively effective (Article 824 of the Civil Act).
· Children born during the marriage do not lose their status as children born while the father and mother are in matrimonial relations.
- Responsibility of fostering children and visitation rights
· In cases of the annulment of marriage, the Family Court shall ex officio determine the custodian, and the provisions of fosterage of children and visitation rights of a divorce by agreement apply to the responsibility of fostering children and the visitation rights (Articles 909 (5) and 824-2 of the Civil Act).
· Thus, the parties shall determine by agreement matters concerning fostering their children. Where the agreement on fostering cannot or would not be made, the Family Court shall decide it upon a request of the party or ex officio (Article 837 (1) and former part of (4) of the Civil Act).
· In addition, a parent who does not foster children and his/her children shall both have the visitation right (Article 837-2(1) of 「Civil Act」).
· The lineal ascendants of a parent who does not foster children may request the Family Court to grant visitation with the children, where the parent is unable to visit the children due to death or any other extenuating circumstance such as illness and residency abroad. In such cases, the Family Court shall take into consideration circumstances such as the intent of the children, the relationship between the requesting person and the children, and the reasons for the request (Article 837-2(2) of 「Civil Act」).
· If it is required for the welfare of children, the Family Court may, upon a request of the party or ex officio, restrict or exclude such visitation right (Article 837-2(3) of 「Civil Act」).