‘혼인의 사실상 파탄’의 의의에 관한 연구

Abstract

If the marriage is viewed as a continuous contractual relationship, the point of the commencement and termination of the contract is significant as it refers to the occurrence and extinction of rights and obligations between the couple. Under our legal system that adopts legal marriage, these times seem clear. However, in actual cases, it is often ambiguous. For example, when requesting the division of the couple’s property in a divorce case, or when there is an issue regarding the period of the obligation to pay living expenses between the couple, the ‘time of de facto breakdown of the marriage’ can be considered earlier than the time of the divorce. The Supreme Court uses the term ‘de facto breakdown of the marriage’ in various situations. But when is the time of ‘de facto breakdown of the marriage’? The functional significance of the state of ‘de facto breakdown of marriage’ appears to the parties in two aspects in divorce. The first aspect is whether the court will decide to grant a divorce in a divorce trial. Since the de facto breakdown of marriage satisfies the objective requirements stipulated in Article 840, Paragraph 6 of the Civil Act, the court may accept the divorce request. The second aspect arises in resolving the remaining issues between divorced couples after the divorce is finalized. We will examine the significance and meaning of the de facto breakdown of marriage through cases since the 2000s.