사이버상담실
인쇄
I am writing this message in hope to shed some light on some legal knowledge for my position.
I am a British Citizen living in Korea (F4 visa) and have been married since October 2017, and currently have a 19 months toddler.
We are currently considering to purchase a property with help of my mother through 차용증 and some cash my mother currerntly has, as well as some of our money (which is also partly my mother's money).
My wide and I have a unhealthy relationship, so I am concerned we may eventually go through a divorce in the future.
So I would like to request for some advice/consult, if we go through with a divorce in the future how will the money which was borrowed from my mother or the property purchased through 차용증, cash and etc will be impacted by our divorce. Would I be entitled to split it with my wife?
I would just like to point out my inlaws have very limited involvement in financial matter from marriage ceremony, currently 전세집, and will most likely very limited involvement in the future if we end up purchasing a house.
Child custody is another matter would need advice on but I would like to go through this matter first.
Please kindly share your expertise in my position.
Thank you
Dear Sir,
First Off I would like to inform that there are some difficulties to answer your question due to the lack of details from the question you asked.
For more information and with detail, we conduct english/foreigner counseling from 6 to 7 pm every Monday. (reservation required)
Now, you are the husband (British nationality) and have a child that is 19 months old.
I would like to ask you first, if your wife’s nationality Korean? (This is an important criteria to determine which countries law we have to apply for your case of divorce.) Because, if the Civil Act of Korea becomes the governing law, and must be tried in a court in Korea,
For the division of property, you should take in regard of the regulations that are related to the Civil Act of Korea. The division of property can be contested with a divorce lawsuit and must be filed within two years of the divorce. The property collected during marriage will be divided according to how much involvement and contribution was made in the process of cumulating the wealth. During the process of division of property, the property will be divided excluding negative property such as debt from the positive properties in the name of the wife and husband according to the degree of contribution in cumulating the wealth.
Each person’s property before marriage is regarded as their own property. Property that was handed during marriage can be counted as own property. However, even if it is proprietary property, if the spouse's contribution to the increase in the property value during the marriage period can be recognized, it is possible to claim the property division for the part of the property that has been gifted or held before marriage after marriage.
In case of real estate that was purchased by borrowing money as you asked, the remaining property is divided according to the degree of contribution of money, excluding the debts from the market price when the property is divided.
Therefore, for your case, if there is an increase in the value of the real estate purchased with the money (gifted and borrowed money are calculated differently)your parents gave after the marriage, your wife can claim the property division. Furthermore regarding the case, the answer is that it “may be recognized”
However, it is necessary that we have to analyze and judge each case so we cannot give a definitive answer to the request for property division as “absolutely not” without firm details.
Regarding alimony, the person who is responsible for the marriage to take apart pays the other person. There is no obligation to pay alimony to your wife if the responsibilites of the break up of the marriage are equal or similar to each other, or you are not responsible for the break up. However, if all aspects such as alimony, property division, child custody, parental rights and child support expenses are not discussed and not negotiated for the both parties satisfaction, you will eventually have to go contest through a lawsuit. Regarding the custody of your child, the welfare of your child is given priority, so if the main custodian of the child was your wife, and since your child is very young, such circumstances will be advantageous to the wife in designating the custodian.
As you might know already, domestic violence or alcoholism is very disadvantageous in designating a child’s care taker.
Please understand that I was able to only give you general answers. I recommend you visiting the center and then we will be able to answer your question in detail in order to solve your problem.
Sincerely,
Korea Legal Aid Center for Family Relations.
Civil Act
Article 840 (Causes for Judicial Divorce)
Either husband or wife may apply to the Family Court for a divorce in each case of the following subparagraphs: <Amended by Act No. 4199, Jan. 13, 1990>
1. If the other spouse has committed an act of unchastity;
2. If one spouse has been maliciously deserted by the other spouse;
3. If one spouse has been extremely maltreated by the other spouse or his or her lineal ascendants;
4. If one spouse s lineal ascendant has been extremely maltreated by the other spouse;
5. If the death or life of the other spouse has been unknown for three years; and
6. If there exists any other serious cause for making it difficult to continue the marriage.
Article 839-2 (Claim for Division of Property)
(1) One of the parties who have been divorced by agreement, may claim a division of property against the other party.
(2) If no agreement is made for a division of property as referred to in paragraph (1), or if it is impossible to reach an agreement, the Family Court shall, upon a request of the parties, determine the amount and method of division, considering the amount of property acquired by cooperation of both parties and other circumstances.
(3) The claim for division of property as referred to in paragraph (1) shall be extinguished after two years have passed from the date of divorce.
[This Article Newly Inserted by Act No. 4199, Jan. 13, 1990]
Article 837 (Divorce and Responsibility of Fostering Children)
(1) The parties shall determine by agreement matters concerning fostering their children. <Amended by Act No. 4199, Jan. 13, 1990>
(2) If the agreement as set forth in paragraph (1) shall include matters as follows: <Amended by Act No. 8720, Dec. 21, 2007>
1. Decision on the custodian;
2. Child support; and
3. Visitation right and methods thereof.
(3) Where the agreement as set forth in paragraph (1) harms children s welfare, the Family Court shall order correction or decide ex officio matters related to fostering, taking consideration of children s intention and age, each parent s financial status and other circumstances. <Amended by Act No. 8720, Dec. 21, 2007>
(4) Where the agreement on fostering cannot or would not be made, the Family Court shall decide it upon a request of the party or ex officio. In such cases, the Family Court shall take matters as set forth in para graph (3) into account. <Newly Inserted by Act No. 8720, Dec. 21, 2007>
(5) Where deemed necessary for children s welfare, the Family Court may change matters concerning fostering or take other appropriate measures, upon a request of each parent, children or prosecutor or ex officio. <Newly Inserted by Act No. 8720, Dec. 21, 2007>
(6) Except for matters related to fostering, the provisions of paragraphs (3) through (5) shall not change the rights and duties of parents. <Newly Inserted by Act No. 8720, Dec. 21, 2007>
The response from this counseling office is based on the circumstances provided by the counselor and is not legally binding. Therefore, specific application results may vary depending on the client's special circumstances or detailed counseling content, so please visit this counseling center for consultation. Inquiries: 1644-7077
