What is judicial divorce?
The concept of judicial divorce
- Judicial divorce refers to bringing an action for divorce and obtaining a divorce by court judgment where a spouse wishes to divorce for any ground for divorce provided for in the Civil Act, but the other party refuses to divorce (Article 840 of the Civil Act).
Types of judicial divorce
Types of judicial divorce
- Judicial divorce is classified into conciliation divorce and litigation divorce depending on the means (procedures) used to obtain divorce.
Conciliation divorce
- Unlike litigation, conciliation is a system to hear out the parties to the conciliation in an informal setting and amicably resolve the issue in consideration of various circumstances by mutual compromise and concession. The Republic of Korea has a system of prerequisite conciliation where the conciliation process is undertaken ahead of an action for divorce.
- Therefore, to obtain a judicial divorce, a spouse must apply for conciliation before bringing an action for divorce; if an action for divorce is brought directly without application for conciliation, the family court will refer the case to conciliation [Articles 2(1)1(b)4) and 50 of the Family Litigation Act]. However, if ① one or both spouses cannot be summoned except through service by public notice, or ② it is found that conciliation would fail even if the divorce case is referred to conciliation, the litigation procedure will be undertaken right away without the conciliation procedure (proviso to Article 50(2) of the Family Litigation Act).
- Divorce is obtained if the spouses reach an agreement to divorce at the conciliation stage (Article 59 of the Family Litigation Act); if the conciliation is unsuccessful, the process will move on to litigation (Article 49 of the Family Litigation Act; Article 36 of the Judicial Conciliation of Civil Disputes Act).
Litigation divorce
- The divorce is decided by divorce litigation in the following circumstances (Articles 49 and proviso to Article 50(2) of the Family Litigation Act; Article 36 of the Judicial Conciliation of Civil Disputes Act).
1. One or both parties cannot be summoned except through service by public notice;
2. It is found that conciliation would fail even if the case is referred to conciliation;
3. There is a decision under Article 26 of the Judicial Conciliation of Civil Disputes Act not to proceed with conciliation;
4. The conciliation fails under Article 27 of the Judicial Conciliation of Civil Disputes Act; or
5. An objection is filed within 2 weeks of a decision instead of conciliation under Article 30 or 32 of the Judicial Conciliation of Civil Disputes Act.