Requirements to obtain a divorce by agreement
Substantive requirements
- A genuine meeting of the minds to divorce
· For a married couple to divorce by agreement, they must have a genuine meeting of the minds to divorce. It is enough for divorce by agreement that the spouses agree of their own free will, and grounds for divorce (e.g., personal incompatibility, conflict, money issues, etc.) are irrelevant.
· The intent to divorce must be in place not only when requesting the family court’s confirmation of the intent to divorce but also as of the time the divorce report is filed. For instance, divorce is not obtained even if the family court confirmed the intent to divorce by agreement if the intent to divorce is withdrawn before the filing of the divorce report.
- Possession of mental capacity
· Mental capacity is required for a meeting of the minds to divorce. Therefore, an adult ward possessed of mental capacity may divorce with the consent of parents or guardians (Articles 808(2) and 835 of the Civil Act).
※ A minor requires the consent of parents or guardian to marry, but being deemed an adult upon marriage (Article 826-2 of the Civil Act), may divorce freely without parental consent.
- Guidance on divorce
· Spouses who applied for confirmation of intent to marry by agreement must receive guidance from the family court on divorce. If necessary, the family court may recommend that the parties be counseled by a professional counselor with expertise and experience in counseling (Article 836-2(1) of the Civil Act).
- Confirmation of the intent to divorce by agreement after the end of the divorce consideration period
· Spouses who received guidance from the court on divorce may obtain confirmation of the intent to divorce after the following divorce consideration period has passed since the date on which they received guidance (Article 836-2(2) of the Civil Act).
1. If the parties have any child in need of care (including an unborn child; same hereinafter): 3 months; or
2. If the parties do not have any child in need of care: 1 month.
· Provided that, the foregoing period may be reduced or exempted if there is an urgent circumstance requiring divorce, such as a party being expected to suffer intolerable distress from domestic violence, etc. (Article 836-2(3) of the Civil Act)
- Submission of a written agreement, etc. on child custody and fostering
· If the parties have any child in need of care (other than any child who will reach the age of majority during the divorce consideration period), they must submit a written agreement on the custody and fostering of such child, or the original copy of the family court adjudication, at the time of application to confirm the intent to divorce by agreement or by the date of such confirmation (Article 836-2(4) of the Civil Act; Article 73(4) of the Rule on Registration of Family Relations).
· If spouses seeking divorce by agreement agree on the share of child support costs, the family court must issue a child support order confirming such agreement. The purpose is the efficient establishment of child support on divorce, and the child support order has the effect of a title of debt (Article 836-2(5) of the Civil Act; Article 41 of the Family Litigation Act).
· If the spouses fail to reach an agreement on the custody and fostering of children, the family court may decide the matter ex officio (Articles 837(4) and 909(4) of the Civil Act).
Formal requirement: Divorce reporting
- No divorce by agreement is obtained without a report of the divorce, even if the foregoing substantive requirements are in place (Article 836(1) of the Civil Act). That is, if the spouses agree on divorce but have not reported the divorce, their legal spousal relationship persists even if they have been separated long-term and are de facto divorced.
- A divorce report shall be filed with the si, gu, eup, or myeon office with jurisdiction over the place of registration or domicile within 3 months of the date one of the spouses was delivered or issued a certified copy of the written confirmation by the family court, with such certified copy attached; the confirmation of the family court loses effect once this period has elapsed (Article 75 of the Act on Registration of Family Relations; Article 79 of the Rule on Registration of Family Relations).
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Legal Tips
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<The effect of a sham divorce> · A sham divorce refers to a situation where the spouses have no intention of divorcing but agree to a temporary divorce for debt avoidance, immigration, etc. · Judicial precedent holds that, given the magnitude of a divorce report, a sham divorce is only annulled where it is proven clearly enough for anyone to be convinced that the divorce was carried out without a genuine meeting of the minds between the spouses to divorce. Otherwise, if the parties reported a divorce by agreement under an agreement to even temporarily dissolve the legally married relationship, the divorce remains valid (Supreme Court Judgment 93Meu171 announced on June 11, 1993; Supreme Court Judgment 76Do107 announced on September 14, 1976). <The effect of divorce by fraud or coercion> · If an intent to divorce was expressed because of fraud or coercion, the divorce may be canceled (Articles 838 and 839 of the Civil Act). · Judicial precedent rules that the confirmation of intent to divorce by agreement is based on the parties’ agreement, with the court’s role being limited to confirming such intent. The effect of the agreement to divorce remains to be determined by civil law principles; if the intent to divorce was expressed because of fraud or coercion, it may be canceled based on Article 838 of the Civil Act (Supreme Court Judgment 86Meu86 announced on January 20, 1987).
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