Whether child support may be sought upon the dissolution of a de facto marriage
Principle- A child born to spouses in a de facto marriage is born out of wedlock, and, as such, follows the mother’s family name and place of family origin (Article 781(3) of the Civil Act) and has a legal mother-child relationship with the mother. Meanwhile, the child has no legal father-child relationship with the father. Therefore, the dissolution of the de facto marriage means that no child support may be sought from the father of the child.
※ Judicial precedent on whether a request to designate a fostering person, etc. may be made against the biological father of a child born out of wedlock
“There is no legal basis under the current law to request a decision on fostering person designation or fostering matters for a child unless a party to the divorce or a party to a judgment for the annulment or cancelation of marriage requests it. Therefore, the biological mother of a child who was born in a de facto marriage or a temporary liaison may not make such a request against the child’s biological father.” (Supreme Court Judgment 79Meu3 announced on May 8, 1979)
When child support may be sought- A legal relationship must exist between the child and the child’s father to seek child support from the father. This legal relationship arises where ① the father admits paternity of the child and reports the child as his biological child (provided that if there is a difficulty in the father reporting under the main body of this Article such as the mother’s whereabouts being unknown or the mother’s failure without just cause to cooperate by submitting the documents necessary to report the birth despite the mother’s identity being known, the report may be made by obtaining the confirmation of the family court with jurisdiction over the father’s place of registration or domicile) (Articles 855 and 859(1) of the Civil Act; Article 57 of the Act on Registration of Family Relations), or ② the child or others bring an action for admission of parenthood against the father and obtain an affirmative judgment (Articles 863 and 864 of the Civil Act).
※ Action for admission of parenthood
- What is an action for admission of parenthood?
· An action for admission of parenthood is a claim brought to a court for admission that a child born out of wedlock is the parent’s biological child where a parent does not admit the child born out of wedlock as the parent’s child.
- Standing to bring action
· An action for admission of parenthood may be brought by a child, the child’s lineal descendants, or legal representative (Article 863 of the Civil Act).
· An action for admission of parenthood may be brought at any time, but if the father or mother is deceased, the action may not be brought 2 years after the death is known (Article 864 of the Civil Act).
- Defendant in the action
· The defendant in the action is the father or mother (Article 863 of the Civil Act) or a prosecutor if the father or mother is deceased (Article 864 of the Civil Act).
- Deadline to bring action
· An action for admission of parenthood may be brought at any time, but if the father or mother is deceased, the action may not be brought 2 years after the death is known (Article 864 of the Civil Act).
- Competent court
· An action for admission of parenthood ① is the exclusive jurisdiction of the family court where the general forum of the defendant is located; and ② if the defendants are all deceased, it may be brought at the family court of the final domicile of one of them (Article 26(2) of the Family Litigation Act).
- Reporting admission of parenthood
· When a judgment for admission of parenthood is final, the admission of parenthood must be reported within 1 month of the date of final decision to the si, eup, or myeon, attaching a certified copy of the written judgment and the certificate of final decision (Article 58 of the Act on Registration of Family Relations).
- Effect of an action for admission of parenthood
· When a judgment upholding the claim for admission of parenthood is finalized, a parent-child relationship is deemed to have existed from the time the child was born (Article 860 of the Civil Act), obligating the parent to support the child and granting visitation rights (Article 864-2 of the Civil Act).
- Suit objecting to admission of parenthood
· A child or other interested party objecting to the admission of parenthood may bring a suit objecting to the admission within 1 year of knowing that the admission of parenthood was reported (Article 862 of the Civil Act).
- If the father-child relationship is admitted as above, the father bears legal liability for the fostering of the child (Articles 837, 837-2, 843, 864-2, and 909(4) of the Civil Act), and a claim of child support may be brought against him.