Unfaithful spouses denied divorce rights

The Supreme Court on Tuesday ruled that the spouse directly responsible for ruining his or her marital relationship is ineligible to file for divorce, in accordance with no-fault regulations.

The highest court’s decision upheld the ruling of a lower court, which dismissed a divorce suit brought by a 68-year-old plaintiff against his 66-year-old wife.

The names of the two were not disclosed, however, according to court files, the plaintiff wed his wife in 1976 and the couple had three children together. The man then began an extra-marital affair in 1996 with another woman, with whom he had another child.

In 2000, the plaintiff moved in with his mistress, though still continued to pay living and education expenses to his original children.

He officially filed for divorce in 2011, after he was diagnosed with kidney disease and his oldest children refused to donate.

Among the 13-member panel of judges, six argued that divorce suits should be accepted in cases in which the marital relationship was undeniably ruined, while the remaining seven said it was still too premature to begin accepting divorce suits by unfaithful spouses given the parameters of current laws.

However, an unfaithful spouse, the top court added, still has the option to divorce by consent.

“In Korea, married couples may break up by filing for divorce but also by consent, which is not a broadly accepted concept in foreign countries,” the judges stated. “In 2014, 77.7 percent of all divorces were consensual.”

“Given the situation, it is not considered necessary to see if the actual relationship is shattered, even in trials for divorces for the sake of the plaintiff’s right to pursue his happiness,” they continued.

The judges also pointed out that Korea lacked legal devices to protect the other spouse if such suits were permissible. In countries in which divorces are not based on consent but on the status of the marital relationship, there are regulations in place to protect and support the livelihoods of the couple’s children and the defendant, the judges said.

“The Supreme Court cannot fully protect the other spouse only based on precedent [without legislative action],” the panel said. “It may lead the other spouse to make sacrifices for the happiness of the person who actually ruined the relationship.”

The judges also said that if the courts were to grant divorces based on the status of a married couple’s relationship, it could appear as though the judiciary was allowing bigamy, especially with adultery decriminalized in February.

The ruling on Tuesday was considered a landmark decision, as the lower courts do not have clear guidelines on such suits.

The Supreme Court first announced that it would not accept divorce suits from unfaithful spouses in September 1965.

It made an exception in the 1980s, allowing divorces when it is objectively clear that a couple is unwilling to maintain the relationship but the other spouse is persisting for retaliation or emotional reasons.

Following the change, lower courts granted divorces in some instances, determining the relationship officially ended, though such decisions essentially went against the principles suggested by the Supreme Court.

BY IM JANG-HYUK, KIM BONG-MOON [kim.bongmoon@joongang.co.kr]