How to cancel a divorce: Action to cancel the divorce
Competent court
- The following family courts shall have jurisdiction over a divorce cancelation litigation (Article 22 of the Family Litigation Act):
1. When the married couple has a general forum in the district under the jurisdiction of the same family court, such family court;
2. When a general forum of either spouse exists in the district under the jurisdiction of the family court wherein the spouses had the last common domicile, such family court;
3. In cases that do not fall under subparagraphs 1 or 2, when either spouse brings action against the other, the family court in the place where the general forum of the other party is located; and when the litigation is against both spouses, the family court in the place where the general forum of one of them is located;
4. When either spouse is deceased, the family court in the place where the general forum of the survivor is located; and
5. Where both spouses are deceased, the family court in the place where the last domicile of one of them is located.
Deadline to bring action
- If an expression of intent to divorce was induced by fraud or coercion, the cancelation of the divorce must be sought within 3 months of being aware of the fraud or being freed from the coercion; cancelation may not be sought after 3 months (see Articles 823 and 839 of the Civil Act).
Defendant in the litigation
- If a spouse brings an action to cancel a divorce, the other spouse is the defendant (Article 24(1) of the Family Litigation Act).
- If a third party brings an action to cancel a divorce, the spouses are the defendants. If either spouse is deceased, the survivor is the defendant (Article 24(2) of the Family Litigation Act).
- If the person who would be the defendant in the action is deceased, the prosecutor is the defendant (Article 24(3) of the Family Litigation Act).
Application for conciliation
- Conciliation proceedings in family court must first be undergone to bring an action for the cancelation of divorce [Articles 2(1)1(b)(iii) and 50(1) of the Family Litigation Act].
Effect of a judgment canceling divorce
- The effect of a final judgment upholding a claim for the cancelation of divorce applies to third parties as well (Article 21(1) of the Family Litigation Act). Therefore, if it was a third party who supplied the ground for the cancelation of divorce, payment of damages for monetary and emotional injury may be sought from such a third party.
Appealing a judgment canceling a divorce
- A party who objects to the judgment of a family court on an action to cancel a divorce may appeal before an authentic copy of the judgment is served or within 14 days of the date an authentic copy of the judgment is served (Article 19(1) of the Family Litigation Act).
- A party who objects to the judgment of an appeals court on an action to cancel a divorce may appeal to the Supreme Court before an authentic copy of the judgment is served or within 14 days of the date an authentic copy of the judgment is served (Article 20 of the Family Litigation Act).