Series Index
Part 1 | Unpaid Corporate Transactions: Liability Behind the Veil
Part 2 | Trade Name Continuity and the Liability of a Successor
Part 3 | Directors’ Liability for Damages
Part 4 | The Person Behind the Company Name
Part 5 | The Limits of Self-Defense in Assault Cases
Part 6 | Criminal Settlement Money: How Much Is Appropriate?
Part 7 | Can Quasi-Rape Be Established If One Has No Memory After Drinking?
Part 8 | Freelancers and Severance Pay: What Courts Really Examine
Part 9 | Assignment of Receivables for Business Financing
Part 10 | Can You Get Divorced If Your Foreign Spouse Disappears?
By Hong Seung-kwon
Principal Attorney, PAN Law Firm (skh@law-pan.com)
What happens if a foreign spouse leaves home shortly after an international marriage and suddenly cuts off all contact? Conversely, what legal options are available if a Korean spouse subjects a foreign spouse to verbal abuse or domestic violence?
This article examines how divorce proceedings can be pursued when an international marriage breaks down shortly after it begins.
Under Korean law, divorce is broadly divided into two categories: divorce by mutual agreement and judicial divorce.
A consensual divorce requires both spouses to appear before the court and confirm their intention to dissolve the marriage. However, this process becomes impossible when one spouse has disappeared, cannot be located, or when severe conflict or violence makes it unrealistic for the parties to appear together. In such circumstances, the only practical option is often a judicial divorce, in which one spouse files a lawsuit against the other.
If either spouse is a Korean citizen residing in Korea, a divorce action may generally be filed with a Korean family court.
Grounds for Judicial Divorce
Article 840 of the Korean Civil Code sets forth the legal grounds for judicial divorce.
When a foreign spouse has left home and cannot be located, two provisions are commonly invoked:
• Article 840(2): Malicious Abandonment
• Article 840(5): Unknown Whereabouts or Presumed Death
“Malicious abandonment” refers to a spouse's unjustified refusal to fulfill marital obligations, including cohabitation, support, and mutual cooperation. A typical example would be a spouse leaving the marital home shortly after marriage without a legitimate reason and cutting off all communication.
Article 840(5) applies when a spouse's whereabouts or survival have been unknown for at least three years. If a spouse leaves and no information is available for more than three years, this provision may become relevant.
In practice, however, many cases qualify as malicious abandonment long before the three-year period has elapsed. As a result, there is often no need to wait three years before filing for divorce.
Service by Public Notice
One practical challenge in these cases is that the missing spouse's address is usually unknown.
In such situations, Korean courts may permit service by public notice. This procedure allows court documents to be posted publicly through designated channels, and after a prescribed period, service is deemed legally completed even if the absent spouse never receives the documents directly.
A significant number of divorce cases involving missing foreign spouses proceed through this mechanism.
However, courts generally require the filing spouse to demonstrate reasonable efforts to locate the missing spouse, including inquiries with relevant authorities and attempts to verify the spouse's address. Public notice service is not granted merely because communication has ceased.
When the Foreign Spouse Is the Victim
A foreign spouse who suffers verbal abuse, domestic violence, or other serious mistreatment by a Korean spouse may seek judicial divorce under Article 840(3), which applies when a spouse or the spouse's direct family members have subjected the other party to severe and unjust treatment.
Alternatively, Article 840(6) may be invoked. This provision serves as a general clause covering circumstances in which the marital relationship has irretrievably broken down.
In practice, proving the specific requirements of Article 840(3) can sometimes be difficult. Consequently, many divorce petitions rely on Article 840(6), which provides courts with broader discretion to recognize that the marriage can no longer be restored.
Can the Spouse Who Left Home Also File for Divorce?
An important question remains: Can the spouse who abandoned the marriage later seek a divorce?
As a general rule, the answer is no.
This issue concerns what Korean law refers to as the "at-fault spouse" doctrine. An at-fault spouse is the party primarily responsible for the breakdown of the marriage. For example, a foreign spouse who voluntarily abandoned the marital relationship may later attempt to seek divorce under Article 840(6).
The Supreme Court of Korea has long maintained the principle that a spouse primarily responsible for the collapse of a marriage should not ordinarily be allowed to obtain a divorce based on that very breakdown.
There are, however, limited exceptions.
Courts may allow an at-fault spouse to obtain a divorce if the other spouse also has no genuine intention of continuing the marriage, if the passage of time has rendered the question of fault largely meaningless, or if responsibility for the marital breakdown is shared by both parties.
Accordingly, if a foreign spouse has been absent for many years and the marriage has deteriorated beyond any realistic possibility of reconciliation, a court may conclude that determining fault no longer serves a meaningful purpose. In such cases, even an at-fault spouse may be granted a divorce.
About the Author
Hong Seung-kwon is an attorney at Law Firm Pan, where he handles a broad range of civil and criminal litigation matters, as well as emerging legal issues arising in the digital age. He regularly analyzes how technological innovation, property rights, and evolving regulatory policies shape legal frameworks and market dynamics.
