별거와 이혼시 혼인주택이용에 관한 소고

Abstract

The Korean agreement-divorce system in practice guarantees the utmost freedom to divorce since a couple can easily get the permission from the court to divorce on the basis of mutual agreement. As a result the welfare of children of divorcing parents and an economically vulnerable spouse is usually neglected to the fact that the consequence of divorce is not taken into a serious consideration. Matrimonial residence is the basis of family life. It is of particular importance to family members as compared with other properties. Even when the title to the residence belongs to one of the spouses, the other spouse’s interest to its use and maintenance remains the same. The living in the residence of the non-owner spouse and children have to be secured against an unilateral disposal by the owner spouse. However, in view of the property law dogma, the spouse who has the title thereto might wish to dispose of it in the market without any restriction like his other properties. The independence of the property law scheme from the family law system becomes more distinct when the parties are separated or divorced. With the breakdown of marriage, the right of co-occupancy of matrimonial residence is eliminated from the family law phase. However, §1361b BGB and Hausratsverordnung empower the judge to induce a lease on the former matrimonial residence between the parties, when the necessity for the continuance of living there is established. Thus, the non-owner spouse’s living in the residence after the breakdown of marriage is protected as a property right against a third party even if the title is transferred to him. In this case, the rent will have to be paid to the former spouse. Meanwhile, the issue of financial support to the separated or divorced spouse will be entrusted to the matrimonial property scheme and alimony-like maintenance. This way of treatment makes the use of the residence consistent with the property law system as well as with the family law idea. In Korea, the matrimonial residence is treated much the same as other properties. Sometimes, the court grants a lease of the former residence to a divorced spouse, but it is considered only as one of the measures in distributing the properties between the former spouses, hence as no more than an adjustment technique within the sphere of the family law. However, this function of a lease which makes it possible for the non-owner spouse to assert his occupancy against a third party should be treasured. As in Germany, it is important to give a more positive role to the lease as a matter of property law in regard to the residence in order to secure the place for a divorced spouse to live. This legal consequentiality will strengthen the real independence of a spouse and the well-being of accompanying children.Key Words: the duty of supporting, co-occupancy, separation, matrimonial residence, cooling-off period rule, pre-divorce counseling