The Benefit and Limitations of No-Fault Divorce in Korea
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Korea has enjoyed an extended period of “compressed development” in recent decades, both causing and responding to an astounding pace of social and economic change. Relatively recent liberalization of South Korea’s laws by well-meaning legislators inspired by a heroic women’s movement has begun to restore the human rights of family members, addressing the reality that patriarchal sex roles imported into Korean society from foreign lands have negatively impacted the normative excellence, the core values and overall symmetry of Confucianism, leading to loss of dignity, marital breakdown and disruption of the family. Some blame lenient divorce laws for the breakup of the traditional Korean family, but a fundamental connection between divorce laws and rising divorce rates has never been validated. In Korea, an innocent spouse has a legal right to divorce an at-fault spouse that has committed “unchastity” or other enumerated wrongs, but Korean family law also accepts divorce by agreement of the married couple without allegation of fault. This article reviews a number of strengths and limitations in Korean divorce law, and concludes that the core function of family law is not to maintain morally-transient, gender-loaded customary values or to increase the couple’s acrimony and permanently fixate them in an uncooperative state by forcing them to humiliate each other in court on fault-based grounds or to prevent their divorce if they will not publicly agree that it is over, but to give each of them a charge and an opportunity to reflect upon their decision; after which, if one or both of them have their mind set on divorce, to presume that breakdown has occurred and allow them to move on, while vehemently protecting the welfare of the vulnerable spouse and innocent children. Barring an at-fault spouse from obtaining a divorce is contradictory to the reality of marital breakdown, particularly when both parties are at fault. As articulated by one insightful scholar, if fault by one party justifies divorce because it proves marital breakdown, it is even more reasonable to allow divorce when both spouses hold the marriage vow in disdain by committing wrongful acts, thereby doubling the chances that reconciliation will fail.
Abstract
Korea has enjoyed an extended period of “compressed development” in recent decades, both causing and responding to an astounding pace of social and economic change. Relatively recent liberalization of South Korea’s laws by well-meaning legislators inspired by a heroic women’s movement has begun to restore the human rights of family members, addressing the reality that patriarchal sex roles imported into Korean society from foreign lands have negatively impacted the normative excellence, the core values and overall symmetry of Confucianism, leading to loss of dignity, marital breakdown and disruption of the family. Some blame lenient divorce laws for the breakup of the traditional Korean family, but a fundamental connection between divorce laws and rising divorce rates has never been validated. In Korea, an innocent spouse has a legal right to divorce an at-fault spouse that has committed “unchastity” or other enumerated wrongs, but Korean family law also accepts divorce by agreement of the married couple without allegation of fault. This article reviews a number of strengths and limitations in Korean divorce law, and concludes that the core function of family law is not to maintain morally-transient, gender-loaded customary values or to increase the couple’s acrimony and permanently fixate them in an uncooperative state by forcing them to humiliate each other in court on fault-based grounds or to prevent their divorce if they will not publicly agree that it is over, but to give each of them a charge and an opportunity to reflect upon their decision; after which, if one or both of them have their mind set on divorce, to presume that breakdown has occurred and allow them to move on, while vehemently protecting the welfare of the vulnerable spouse and innocent children. Barring an at-fault spouse from obtaining a divorce is contradictory to the reality of marital breakdown, particularly when both parties are at fault. As articulated by one insightful scholar, if fault by one party justifies divorce because it proves marital breakdown, it is even more reasonable to allow divorce when both spouses hold the marriage vow in disdain by committing wrongful acts, thereby doubling the chances that reconciliation will fail.
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