The Constitutional Court has declared the unconstitutionality of the Adultery clause. Accordingly, the liberty to divorce is separated from one’s guiltiness. Still, our legal system adopts Fault Principle on judicial divorce without a concrete statute. Thus, precedents have broadened the exception of the liability principle, and there is an ongoing open trial to examine the necessity of the Breakdown Principle. The Breakdown Principle is justified by constitutional and practical reasons. Hence, to make up for its weak points, it should be adopted with protective methods for the non-guilty spouse. There are means to remedy its shortcomings, such as reinforcing the act of indemnification for damage and legislating the Hardship Clause.
Recently, Korea has made a progress on the issue of marriage. On February 26, 2015, the Constitutional Court ruled that Criminal Act, Article 241, former adultery clause, is unconstitutional. This not only means that governmental authority will not control one’s sexual connection by punishment but it also implies the freedom to divorce. By abolishing adultery, the right to pursue happiness will be highlighted in the matter of marriage. Although there was an advance on Criminal Act, there are still issues remaining on civil cases. In particular, Korean courts restrict application for divorce when claimed by a guilty spouse. This shows that the court views maintaining marriage as a punishment for the guilty spouse. In this regard, instituting non-fault divorce should be considered along with the current legal system.
Ⅱ. Overview of Judicial Divorce
There is judicial and theoretical debate on principles of judicial divorce. There are two major principles on this matter: the Fault Principle and the Breakdown Principle. The Fault Principle prohibits a spouse to file a divorce petition when he or she is guilty of breaking the marriage. On the other hand, the Breakdown Principle allows either side of the spouse to file a divorce petition regardless of one’s fault, once the marriage has failed. There is no clear legal basis whether to restrict guilty spouse’s divorce petition. However, the Supreme Court holds the Fault Principle, while the proponents of the latter argue that Civil Act Article 840.6 can be interpreted as the Breakdown Principle.
Civil Act prescribes six conditions to claim judicial divorce in Article 840. A spouse can claim a divorce if one of the six causes exist. Among them, the first condition, Article 840.1, “If the other spouse has committed an act of unchastity” is related to adultery, and the sixth condition, Article 840.6, “If there exists any other serious cause for making it difficult to continue marriage,” allows the judiciary to cover other unexpected causes. However, there is no Hardship Clause to protect the non-guilty spouse. It is because the Hardship Clause, which prohibits divorce in extreme circumstances, is unnecessary on the basis of Fault Principle in judicial divorce.
Ⅲ. Court’s Decision
Since the precedent of 65Me 37 (Supreme Ct., Sept 21, 1964) judgment, the Supreme Court has generally denied the divorce cases which were filed by a guilty side. Until 2012, the rate of acknowledging guilty spouse’s divorce petition by the Supreme Court was only 5.8%. Precedents have strictly limited guilty spouse’s divorce application, but the Supreme Court’s decision of 1987, 86Me28 (Supreme Ct, Apr. 14, 1987), made an exception for it. Since then, the court has built exceptions for the Fault Principle. There are five occasions the court approved:
① when requested person does not have any intention to continue marriage but resisting divorce only to revenge on the claimant or to refuse to yield, ② when the intention to divorce of the requested person is brought by a counteraction, ③ when the guilty cause of the claimant is no bigger than the requested person’s guilty cause, ④ when there is no causal relationship between the guilty cause and the breakdown of the marriage, and ⑤ when approving the petition is not markedly opposed to social justice.
The precedents which ruled the exceptions are mostly distributed around 2010, and the precedent of 2009 has quoted the Principle of Good Faith in accepting the guilty spouse’s petition. In 2015, an open trial to adopt the Breakdown Principle is in progress.
- The Precedent of 2009
The Supreme Court judgment in 2009 approved the plaintiff’s claim by interpreting Article 840.1. In this case, the culpable spouse gave birth to a deformed child during separation. It was clear that forcing the current state would give the plaintiff and her born out of wedlock child unbearable pain. In the decision making process, the court considered the welfare of this child. The court stated that the existing marriage had already failed after 11 years of separation, and accepting the defendant’s intent to continue the marriage would only leave the shell of legal marriage. Therefore, the court declared that “There exists a divorce cause of Civil Act Article 840.6, “if there exists any other serious cause for making it difficult to continue marriage” between the plaintiff and the defendant.” Also, the court underpinned that the liability of the plaintiff is not grave enough to exclude the request for divorce in the view of the Principle of Good Faith, which is the guiding philosophy of Civil Act, and the purpose of the marriage system.
This precedent has broadened the exception of the Fault Principle within the scope of Article 840, Judicial Divorce clause, by applying the general principle of Civil Act. Moreover, the court acknowledged the necessity of protecting the de facto marriage by weighing the child’s benefit.
- Ongoing trial of 2015
On June 26, 2015, the Supreme Court opened a trial to decide whether to accept the guilty spouse’s divorce petition. The guilty side was a husband who had an affair with another woman. He has lived with her and his child born out of wedlock since 2000. However, the husband has paid the school expense for the children who were born between him and his legal wife, and covered the monthly living expenses of his legal family.
Grounds for the argument of both sides were focused on one’s fundamental rights, social recognition, and protection for the weak, etc. The plaintiff argued that the society has changed as seen in the case of the Adultery clause of the Constitutional Court, and that our legal system has already arranged fair treatment for the weak. However, the defendant claimed that the issue of divorce is different from that of the criminal conversation, and current Civil Act is insufficient to compensate the demerits of divorce. The court’s decision is expected to be finalized during this summer.
Ⅳ. Validity of Non-Fault Divorce
According to the research done by Korean Women’s Development Institute, the rate of people who fully agree with adopting the Breakdown Principle was 10.5%, and the proportion of those who agree restrictively under the protection of the other spouse was 57%. This means that majority of the population is ready to accept the Breakdown Principle. Still, there are certain grounds for opposing it, such as protecting the non-guilty spouse, marriage as a civil contract, etc.
- Reasons to Accept the Breakdown Principle
(1) Enhancement of Fundamental Rights
The Breakdown Principle is closely related to fundamental rights. First of all, the right to pursue happiness can be accentuated by divorce. Even if the court does not accept the guilty spouse’s divorce petition, a broken couple is unlikely to be bound again. They may be family members on paper, but they do not share the heart of it. Rather, the Fault Principle deprives the couple of their opportunity to find a healthier relationship.
The Breakdown Principle also guarantees the right to form a family. In cases of adultery or long-term separation, a guilty spouse can form another family. It is hard to protect the new family if the law forces him or her to maintain the existing legal marriage. This new family, which may embrace more virtues of marriage such as love and trust, loses acknowledgement by the legal system. The law should protect the family that has the actual conditions of family and not the formal one.
(2) Marriage as a Civil Contract
Some say that marriage is an important type of contract, and should be protected well. However, even if marriage could be regarded as a kind of contract, forcing a person to comply with the contract is not a reasonable conclusion. Modern legal system is founded on the principle of private autonomy. It does not decide one’s will to follow; rather it makes compensation for consequences of one’s action. In fact, the Supreme Court recognized the right of the non-guilty spouse to claim for damage in an adultery case.
- Protecting the Non-Guilty Spouse
Even if the Breakdown Principle is accepted, protection for the non-guilty spouse is necessary. Particularly, a non-guilty side can face both economic crisis and social prejudice. However, this problem can be solved by legislation.
(1) Mental and Economic Hardship
It is true that divorcees in the Korean society have suffered due to prejudice. Historically, women were the victim of divorce, and the court may have adopted the Liability Principle to protect the wives. However, the society has changed now. According to a social survey in 2014 conducted by Statistics Korea, the percentage of people who think ‘one should not divorce’ has dropped to 44.4%, and ‘may or may not divorce’ has risen up to 39.9%. Compared to the social survey in 2008 which showed the number of 68% for ‘should not divorce’, negative perspective towards divorce has drastically altered. This implies that the Korean society is starting to consider divorce as a neutral matter. Therefore, a divorcee would not be interpreted as a defective person or a looser as time goes by.
And in most cases, mental and economic hardship can be answered by complementing the existing system. The increasing the amount of alimony could be one thing to attempt. Also, compensation for damage by Civil Act Article 751 and Article 760 is already applied by the court. There is a recent precedent from the Supreme Court which confirmed the right to claim for damage when the other spouse committed adultery. The court said “… from the context of the duty of cohabitation, a couple bears the burden of sexual duty of good faith, that one should not commit adultery… and if one side of the spouse cheats, the spouse should bear the burden of compensation for the other spouse’s mental damage.” It also concluded that the third party who committed adultery with the spouse has liability for his or her unlawful act. The court can still employ this precedent, though limited to adultery cases, even after the Breakdown Principle is introduced to the legal system. And if this duty of compensation is not considered under the new standard, it can be legalized as a special act to guarantee the non-guilty spouse’s safeguard.
(2) Adopting the Hardship Clause
The Hardship Clause (Ehegattenschutzklausel) is a kind of protection for a non-guilty spouse. When divorce can cause brutal consequences to the spouse who refuses it, and continuing the marriage will be the only protective method for his or her mental, economic, and social interest, divorce would not be allowed even if the marriage has failed. This clause can be used to improve the weakness of the Breakdown Principle. However, it should be practiced in a strictly limited manner, as it can disregard the purpose of the Breakdown Principle. For example, when one spouse has a serious illness and would suffer more by divorce or when one spouse has sacrificed to help the other’s business, the Hardship Clause can be applied.
Along with the abolition of the Adultery clause, divorce should also be free from governmental interference. Even though there is no explicit legal basis about the eligible claimant for judicial divorce, substantial amount of precedents have declared that guilty spouse cannot demand divorce under the Fault Principle. However, the Breakdown Principle is more suitable for modern legal system, and also improves the lives of broken couples by securing their fundamental rights. The Breakdown Principle also has its weak points, but the society has changed and it can be supplemented by other institution such as the Hardship Clause
 Choi Myung-Soo, A need to change of No-Fault Divorce System in Civil Law, Legal Institute of Kyungsung University 1-2, (2011).
 Kim Dong-Keun, From Divorce Action to Alimony and Division of Property (trans. by writer), Jinwonsa, 384 (2012).
 Bok-soon Park, Seon-Young Park & Yeo-Bong Lee, A study on Divorce Legal System Reforms, Korean Women’s Development Institute, 56 (2012).
 Supra note 1, at 3.
 Supra note 3, at 89.
 Supra note 1, at 3.
 Hye-sook Kim, Hee-bae Lee & Gye-sook Yoo, Divorce Therapy and Law, Hakmoonsa, 198-199 (2008).
 2009Me 2130 (Supreme Ct., Dec. 24, 2009).
 Hong sae-mi, Divorce Petition, Will Breakdown Principle be Adopted by Breaking Down the Fault Principle of 50 Years?(trans. by writer), Lawtimes (Jun. 29, 2015), https://www.lawtimes.co.kr/Legal-News/Legal-News-View?serial=93977 (last visited Jul. 24, 2015).
 Lee hyun-mi, Divorce, ‘Breakdown principle’… the Supreme Court Started to Consider it to be Premature (trans. by writer), Newsis (Jul. 3, 2015), http://www.newsis.com/ar_detail/view.html?ar_id=NISX20150703_0013768520&cID=10201&pID=10200 (last
visited Jul. 24, 2014).
 Supra note 8.
 Supra note 3, at 197.
 See, e.g., Divorce Petition,Fault Principle VS Breakdown Principle… the Supreme Court’s Open Trial (trans. by writer), News.koreanbar (Jul. 6, 2015), http://news.koreanbar.or.kr/news/articleView.html?idxno=13042 (last visited Jul.24, 2015).
 Supra note 1, at 19.
Statistics Korea, http://kostat.go.kr/portal/korea/kor_ko/5/2/index.board?bmode=read&aSeq=332355 (last visited Jul. 24, 2015).
 2013Me 2441 (Supreme Ct., May. 29, 2015).
 Supra note 3, at 56.
 Id. at 56.
 Id. at 56.