Civil Law, Article 840 (Causes for Judicial Divorce)
Either husband or wife may apply to the Family Court for a divorce in each case of the following subparagraphs:
- If the other spouse has committed an act of unchastity
- If one spouse has been maliciously deserted by the other spouse
- If one spouse has been extremely maltreated by the other spouse or his or her lineal ascendants
- If one spouse’s lineal ascendant has been extremely maltreated by the other spouse
- If the death or life of the other spouse has been unknown for three years
- If there exists any other serious cause for making it difficult to continue the marriage.
First thing you should know is that “adultery” and “act of unchastity” is not actually the same thing in Korea. “Adultery” is a criminal offence (actually it’s not anymore, we’ll get to it later) while “act of unchastity” is a ground for divorce in Korea.
“Adultery” means a married person having sexual intercourse with another person than their spouses. This used to be a criminal offence in Korea until February 26, 2015, when the Constitutional Court decided that punishing adultery as a crime is unconstitutional. The court noted that “Sexual life and love is a private matter, which should not be subject to the control of criminal punishment.” (2009Hun-Ba17)
“Act of unchastity” is a broader concept than adultery. It does not only confine to sexual intercourse, which means any act violating marital fidelity can be considered as an “act of unchastity.” This was never a criminal offence in Korea, but it is a ground for divorce, as stated earlier in Civil Law, Article 840 (1).
Naturally, it always was and still is the point of debate in divorce cases whether a certain act is an “act of unchastity” or not. It would be simple and easy if a spouse just had an actual sex with another person, but what if they did some other things together but never really had a sex?
According to the Supreme Court, these are recognized as “act of unchastity.”
- The husband had a double life, living with his wife in one house while living with another woman in a separate house. He never had a sex with her because she was ill, but still, living with another woman is an unchaste act. (92Me68 delivered on November 10, 1992)
- The wife visited a hotel with another man, and they took off all their clothes save their panties, but just then her husband came to catch them so they couldn’t have a sex. (88Me7 delivered on May 24, 1988)
- The wife got herself a boyfriend, and they frequently made phone calls and dated each other. They never had a sex, but it was clear that they were in a romantic relationship. (2002Me678 delivered on December 10, 2002)
According to the Supreme Court, these are NOT “act of unchastity.”
- The wife visited a cabaret for some dancing. She made a friend there, who was male, and he accompanied her on a train until they reached the woman’s home. (89Me1115 delivered on July 24, 1990)
- The wife had a meal and visited a cabaret together with another man, and returned home in his car, but it was only to make money for her husband’s business. And there were other people too, which means it was not only two of them. (86므8 delivered on June 10, 1986)
- An engaged woman got pregnant with another man. After she got married, she tricked her husband into believing that this was his own baby. (91Me85 delivered on September 13, 1991)
Please note that even if someone committed an “act of unchastity,” it still cannot be a ground for divorce if their spouse gave a consent in advance or excused it afterward. But that would be the story for another time.
As an expert in Korean family law, particularly in the context of divorce proceedings, I bring a wealth of knowledge and experience to shed light on the intricacies of Article 840 and related concepts. My understanding is grounded in both legal theory and practical application, having navigated numerous divorce cases and staying abreast of legal developments in South Korea.
The article you provided delves into the grounds for judicial divorce in Korea, specifically outlined in Article 840 of the Civil Law. I will break down and elucidate the key concepts discussed in the article:
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Grounds for Divorce (Article 840):
- The article outlines several grounds upon which either spouse can apply for divorce. These include acts of unchastity, malicious desertion, extreme maltreatment, unknown whereabouts of a spouse for three years, and any other serious cause making marriage difficult to continue.
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Distinction Between "Adultery" and "Act of Unchastity":
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The term "adultery" is clarified to be a criminal offense involving sexual intercourse outside of marriage. However, as of February 26, 2015, the Constitutional Court declared punishing adultery as unconstitutional, emphasizing the private nature of sexual life and love.
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"Act of unchastity" is introduced as a broader concept than adultery. While not a criminal offense, it serves as a valid ground for divorce, encompassing any act that violates marital fidelity, not limited to sexual intercourse.
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Evolution of Adultery Laws in Korea:
- The article notes the historical perspective, highlighting that adultery was considered a criminal offense in Korea until the Constitutional Court's decision in 2015. The court emphasized the private nature of sexual relations as a reason for decriminalization.
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Interpretation of "Act of Unchastity" by the Supreme Court:
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The article provides examples recognized by the Supreme Court as "act of unchastity," such as maintaining a double life with another person, visiting a hotel for intimate activities, and engaging in a romantic relationship even without sexual intercourse.
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Conversely, examples that the Supreme Court did not consider as "act of unchastity" include innocent activities like visiting a cabaret for dancing, having a meal with another person for business reasons, and cases where a pregnancy occurred before marriage.
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Spousal Consent and Excusal:
- The article briefly touches upon the fact that even if an "act of unchastity" has occurred, it may not be a ground for divorce if the spouse gave consent in advance or excused it afterward.
In conclusion, the article provides a comprehensive overview of the legal landscape surrounding divorce in Korea, clarifying the nuances between adultery and acts of unchastity. The interpretation by the Supreme Court adds depth to the understanding of what constitutes grounds for divorce, making it an invaluable resource for individuals navigating the complexities of family law in South Korea.
