Divorce litigation with the spouses abroad
Law applicable to divorce- If the parties (spouses) in the divorce litigation are Korean nationals, the Republic of Korea law applies to decisions on the divorce, custodial rights, etc., even if they reside abroad (Articles 64(1) and 66 of the Act on Private International Law).
Trial jurisdiction- To bring an action in a Republic of Korea court, a court in the Republic of Korea must have international trial jurisdiction over the divorce case. Judicial precedent holds that, as a rule, the court with jurisdiction over the defendant’s domicile will have jurisdiction (Supreme Court Judgment 2005Meu884 announced on May 26, 2006), while Article 2 of the Act on Private International Law provides that a court in the Republic of Korea shall have international jurisdiction where a party or a dispute case is substantively related to the Republic of Korea.
When an action for divorce is brought to family court in the Republic of Korea- How to bring action
· A party to the litigation or the party’s legal representative must appear when summoned to a hearing, examination, or conciliation date. However, an agent may appear with the permission of the presiding judge, chief mediator, or judge in charge of conciliation if there is an extraordinary circumstance such as a person abroad engaged in divorce litigation in Korea (Article 7 of the Family Litigation Act).
※ Details on judicial divorce procedures are found in the <Judicial Divorce-Judicial Divorce Procedures-Procedures of Judicial Divorce> section of this article.
- Divorce report to an overseas diplomatic mission or an administrative agency in the Republic of Korea
· When a divorce judgment obtained by divorce litigation is final, one of the spouses must report the divorce within 1 month of the date the conciliation was effectuated or the judgment became final to an overseas diplomatic mission (meaning, a Republic of Korea embassy, consulate general, consulate, branch, or local office. If there is no overseas diplomatic mission with jurisdiction over the area, the overseas diplomatic mission with jurisdiction over the adjacent area; same below) or the si, gu, eup, or myeon office with jurisdiction over the place of registration or domicile by attaching a certified copy of the written judgment and certificate of the final decision to the divorce report (Articles 34, 58 and 78 of the Act on Registration of Family Relations).
When bringing an action for divorce to an overseas court- Recognition of foreign judgments
· A divorce judgment obtained by bringing an action for divorce in an overseas court does not take direct domestic effect. The final judgment of a foreign court or a judgment acknowledged to have the same force (hereinafter “final judgment, etc.”) is only recognized if it fulfills all of the following requirements (Article 217(1) of the Civil Procedure Act):
1. The international jurisdiction of such foreign court is recognized under the principle of international jurisdiction following the statutes or treaties of the Republic of Korea;
2. The defendant to whom the ruling was made against is served, by a lawful method, a written complaint or document corresponding thereto, and notification of date or written order allowing the defendant sufficient time to defend (excluding cases of service by a public notice or similar), or the defendant responded to the lawsuit even without having been served such documents;
3. The recognition of such final judgment, etc. does not undermine sound morals or other social order of the Republic of Korea in light of the content of such final judgment, etc. and judicial procedures; and
4. A mutual guarantee exists, or the requirements for recognition of final judgment, etc. in the Republic of Korea and the foreign country to which the foreign country court belongs are not manifestly disproportionate and are substantively similar in important points.
※ Relevant judicial precedent
“If a judgment was announced and was finalized abroad after a final judgment was made in the Republic of Korea for the same parties and the same case, such foreign judgment infringes on the res judicata of the Republic of Korea judgment, thereby undermining the sound morals or other social order and failing to meet the requirements for recognition of foreign judgments as provided for in Subparagraph 3 of Article 203 of the Civil Procedure Act (before the amendment by Act No. 4561 of June 11, 1993); meaning, it has no effect in the Republic of Korea.”(Supreme Court Judgment 93Meu1051,1068 announced on May 10, 1994)
- Divorce report to an overseas diplomatic mission or an administrative agency in the Republic of Korea
· When a divorce judgment obtained by divorce litigation is final, one of the spouses must report the divorce within 1 month of the date the conciliation was effectuated or the judgment became final to an overseas diplomatic mission, the si, gu, eup, or myeon office with jurisdiction over the place of registration or domicile, or family relations registration officer at the family relations registration office for nationals abroad by attaching the following documents to the divorce report [Articles 58 or 78 of the Act on Registration of Family Relations, Work Guidance on Procedures for the Registration and Reporting of Family Relations of Korean Nationals Residing Abroad (Established Rule for the Registration of Family Relations No. 486, issued on February 17, 2016, enforced on March 1, 2016) No. 2; Article 2 of the Work Guidance on Family Relations Registration Due to Divorce Judgment by a Foreign Court (Established Rule for the Registration of Family Relations No. 419, issued on January 8, 2015, enforced on February 1, 2015)]:
1. The authentic or certified copy of the judgment and certificate of final decision [provided that if a divorce certificate is issued instead of the authentic or certified copy of the foreign court and the certificate of final decision, such a divorce certificate];
2. The defendant to whom the ruling was made against was served, by a lawful method, a written complaint or document corresponding thereto, and notification of date or written order allowing the defendant sufficient time to defend (excluding cases of service by a public notice or similar), or documents showing the defendant’s response to the lawsuit even without having been served such documents (only attached when this fact is not clear from the authentic or certified copy of the judgment); and
3. Translations of the foregoing documents.