ENGLISH

Divorce

Claim for the division of property

Claim for the division of property

The concept of a claim for the division of property

- When spouses divorce, a need arises to divide the property they amassed in common during the marriage. A claim for the division of property is the right of a divorced spouse to claim the division of property from the other spouse.

- A claim for the division of property is recognized for both divorce by agreement and judicial divorce; if the spouses fail to reach an agreement on the division of property, a claim may be brought in family court for an adjudication on the division of property [Articles 839-2 and 843 of the Civil Act; Articles 2(1)2(b)(iv) and 36(1) of the Family Litigation Act].

※ Constitutional Court precedent on the system of claims for division of property

“Division of property in the event of divorce is fundamentally a liquidation of joint property formed by cooperation between the parties during marriage, with a supplementary purpose of support for the other spouse suffering economic deprivation … ” (Constitutional Court 96HeonBa14 En Banc Decision of October 30, 1997)

The assignment and inheritance of a claim for the division of property

- There is a difference of opinion on whether a claim for the division of property may be assigned or inherited. However, there is a judicial precedent ruling in a case where divorce litigation and a claim for the division of property were integrated that once a spouse is deceased, a claim for the division of property, which requires divorce and is auxiliary to the divorce litigation, has no reason to persist and is extinguished with the termination of the divorce litigation (Supreme Court Judgment 94Meu246,253 announced on October 28, 1994).

The relationship between a claim for division of property and a claim for consolation money

- The two claims differ in many aspects including their grounds, legislative purpose, and trial proceedings, with the division of property to claim repayment according to one’s contribution to property amassed jointly by the spouses during marriage and the divorce consolation money to console the emotional distress of a person who came to divorce by a fault attributable to one spouse. This results in leading judicial precedent to view them as separate regimes (Supreme Court Judgment 2000Da58804 announced on May 8, 2001). Therefore, one may bring separate claims for the division of property and consolation money.

Reference: The Courts’ Timing and Standard for the Calculation of Division of Property

Judicial precedent determines the property subject to the division of property and its value as of the date of the divorce report for divorce by agreement and the close of trial hearings for judicial divorce (e.g., Supreme Court Judgment 99Meu906 announced on September 22, 2000; Supreme Court Judgment 2005Da74900 announced on September 14, 2006), while the method, proportion, and amounts of the division of property will be determined in consideration of the amount of property amassed by cooperation between the parties and other circumstances (Supreme Court Judgment 97Meu1486,1493 announced on February 13, 1998).

Reference: Exercise of the Right to Revoke Fraudulent Acts for the Preservation of the Right to Division of Property

※ What is the right to revoke fraudulent acts?

If one spouse has committed a fraudulent act, that is, a juridical act with a property right as its object, such as disposing of real estate, knowing it injures the other spouse’s claim for division of property, the other spouse may apply the provisions of the Civil Act on the claimant’s right of revocation mutatis mutandis to seek the revocation and restoration of the fraudulent act to the family court. This is called the right to revoke fraudulent acts (Articles 406(1) and 839-3(1) of the Civil Act).

※ Deadline to bring action for the revocation of fraudulent acts

An action for the revocation of fraudulent acts must be brought within 1 year of being aware of the cause of revocation and 5 years of the date the juridical act took place (Articles 406(2) and 839-3(2) of the Civil Act).