LK NEWSWIRE

[May 2016] Kim Yesle, 2015 Supreme Court Decision Summary (Vol. 1)

Author
LEXKOREA
Date
2016-05-19 11:59
Views
1830
The Supreme Court Denies the Breakdown Principle on Judicial Divorce

On September 15, 2015, the Supreme Court declared that the guilty spouse's divorce petition cannot be allowed, and it should only be permitted on certain conditions(2013Meu568).

Majority Opinion

The majority opinion claimed that it is not necessary to adopt the breakdown principle in Korea. Unlike other countries which have employed this principle, Korea has the provision on 'divorce by agreement'. Therefore, a guilty spouse still has a way to divorce by persuading the other spouse. Moreover, there is no legal protection that can compensate the non-guilty side. Thus, adopting the breakdown principle may unilaterally sacrifice the non-guilty spouse while promoting the happiness of the guilty side. Especially, women's livelihood may suffer as there still exists gender inequality in Korean society. Women are discriminated on various social matters such as job offer, income rate, or raising children.

However, the majority opinion also recognized exceptional circumstances to accept the guilty spouse's divorce petition. The petition can be grant if it does not violate the morality of marriage and the principle of good faith, The court suggested the specific occasions as follows; if the other spouse does not have any intention of maintaining the marriage; or if the guilty spouse has provided enough care and consideration to the other spouse and their children to compensate one's fault; or if the mental pain of the non-guilty spouse has been relieved as time goes by.

Dissenting Opinion

On the contrary, the court's dissenting opinion argued that the breakdown principle should come first. According to this opinion, the guilty spouse's divorce petition cannot be allowed in exceptional cases such as economic or mental hardship of other family members.

Comment

The Supreme Court's decision has made it clear that the breakdown principle is yet to be adopted under the current korean legal system. However, it has substantially acknowledged the possibility of incorporating the breakdown principle into the Korean legal system with some exceptional occasions as explained earlier. Therefore, it is likely that the Court would adopt the breakdown principle in the near future.