South Korea just reaffirmed its top spot as one of the most difficult countries in the world for getting a divorce. While Americans take for granted the right to a no-fault divorce, Korean divorce law is built on a firm foundation of fault. In fact, which spouse is at fault for the end of marriage must be determined before the case can even be filed. This is because “guilty” spouses are not allowed to get divorced.
When a couple wishes to divorce in South Korea, a reason allowed under law must be given. Acceptable reasons include malicious desertion, extreme mistreatment or abuse, no contact for three years, as well as other serious causes as determined by the court. Most couples work within the law by both spouses taking some blame for the end of the marriage and agreeing to a settlement on division of property, child custody and support, and other issues. One reason for divorce is not so easy to resolve, when one spouse has committed an unchaste act.
Under South Korean Law, an unchaste act is not limited just to adultery. It can also include romantic relationships without sex. The “guilty” spouse who committed the unchaste act can only be granted a divorce if the other “innocent” spouse agrees. If the other spouse refuses, the couple remains married.
Mr. Baek of South Korea found himself in this exact situation. Fifteen years ago, he left his wife and children and moved in with another woman. Although he has since had a child with his new partner, he remains married to his wife because she refuses to agree to a divorce. Since he had an extramarital affair, he cannot file for divorce himself. He sued for the right to a divorce. The case went all the way to South Korea’s highest court.
In a highly debated 7-6 split decision, the court ruled against Mr. Baek and affirmed the law. It stated that the law should be preserved because it protects women, especially those who stay at home to raise children, from abandonment by unfaithful husbands. Mr. Baek will remain married to his first wife until she decides to file for divorce or one of them dies.
As bad as that outcome was, things could have been much worse for Mr. Baek. It was only in early 2015 that the high court decriminalized adultery. Prior to that decision, a person convicted of having an extramarital affair could be sentenced to serve time in prison.
