In international divorce proceedings, the applicable law must first be determined.

 

International Marriage and Divorce Issues

  Ending an international marriage is often not as simple as the mere decision to “separate.”   Today, marriages between Koreans and foreign nationals have become increasingly common, and correspondingly, more couples are facing the prospect of divorce. However, unlike domestic divorces, international divorce proceedings involve far more issues to consider from the outset, including determining the applicable law and the standards for filing a lawsuit.   It is not uncommon for proceedings to stall after filing a complaint without sufficient preparation, due to jurisdictional disputes or problems with serving documents abroad. When children or overseas assets are involved, the matter extends far beyond the dissolution of the marital relationship, encompassing immigration status, child custody, and division of property. Such cases demand a far more strategic approach.   Because international divorce proceedings are much more complex than ordinary divorces, it is safer to secure the assistance of legal counsel from the very beginning and to proceed step by step under professional guidance.    

Contents

 

1. In international divorce proceedings, which country’s law applies?

 

2. How are property and child-related issues resolved?

 

3. What happens to the foreign spouse’s residence status after divorce?

 

4. Why is legal representation essential in international divorce cases?

 

5. Conclusion

   

1. In international divorce proceedings, which country’s law applies?

  In international divorce proceedings, the very first step is to determine which country’s law will govern the divorce.   Under Korean law, if both spouses share the same nationality, the law of that country will apply. If the spouses hold different nationalities, then the law of the country where they established their common residence—namely, their habitual place of living—will apply.   For example, if the couple has been living together in Korea, it is highly likely that the Korean Civil Code will govern the proceedings.   As for jurisdiction, it is the court receiving the petition that determines whether it has authority over the case. However, if the foreign spouse (the respondent) does not reside in Korea, continuing the lawsuit in a Korean court may not be feasible. In such cases, proceedings may need to be conducted through the courts of the respondent’s country, and in fact, there have been many instances where the case was handled in this way.   Therefore, even if the marriage was registered in Korea, assuming that the divorce will automatically be processed in Korea can lead to significant procedural issues.    

2. How are property and child-related issues resolved?

  In international divorce proceedings, the matter often extends beyond the mere legal termination of the marital relationship to include property division and child-related issues.   Property division is not determined solely on the basis of income. The court considers a wide range of factors, including economic activity during the marriage, contributions to household management, and child-rearing responsibilities. Regardless of whose name the property is registered under, if substantial contributions can be demonstrated, the property may be subject to division.   Child custody matters are even more complex. When the spouses hold different nationalities and the child is a foreign national, the following factors are typically taken into account:

• The country in which the child will primarily reside in the future
• Which parent can provide a more stable environment for the child’s upbringing
• Whether the decision complies with the Hague Convention on the Civil Aspects of International Child Abduction

  In addition, the court evaluates the child’s age, emotional bonds, and current living environment in order to reach a decision. For this reason, custody is rarely resolved solely based on the parents’ agreement, such as “I will raise the child because they are mine.”    

3. What happens to the foreign spouse’s residence status after divorce?

  In international divorce proceedings, clients often seek assistance not so much for the divorce itself, but rather for issues concerning the foreign spouse’s residency status after the divorce.   For foreign spouses residing in Korea on a marriage-immigrant visa (F-6), it is possible to maintain residency even after divorce, provided that certain conditions are met.   For example, a foreign spouse may apply for an extension of stay if:

• They are directly raising a child born of the marriage (F-6-2), or
• The marriage broke down due to the Korean spouse’s serious fault, such as domestic violence or infidelity (F-6-3).

  However, if the court determines that the breakdown of the marriage was primarily caused by the foreign spouse, it becomes virtually impossible to extend the period of stay.   Thus, the dissolution of the marriage does not, in itself, resolve all issues. The question of whether the foreign spouse may continue living in Korea is also determined as part of the broader process.    

4. Why is legal representation essential in international divorce cases?

  In international divorce proceedings, the critical point is not merely the decision to divorce, but rather how the process is initiated thereafter.   When the spouses hold different nationalities, the applicable law may differ, and the competent court must be separately determined. If the other party resides abroad, proceedings can in fact be delayed or suspended due to difficulties in serving documents.   If children are involved, the matter extends beyond custody to include visitation rights. In addition, property accumulated during the marriage, as well as the foreign spouse’s right to remain in Korea after the divorce, all become interconnected issues.   Thus, an international divorce is not a matter that concludes with a simple dissolution of the relationship. It is a complex process involving both legal and administrative elements.   For this reason, it is far safer to approach international divorce strategically with the guidance of an experienced attorney rather than attempting to prepare alone. Mistakes in the initial stages can lead to lengthy delays or outcomes under unfavorable terms.    

5. Conclusion

  As I mentioned earlier, issues of international divorce go far beyond the mere legal dissolution of a marriage. They encompass determining the applicable national law, jurisdiction of the court, disputes over child custody, division of marital property, and even post-divorce residency review for the foreign spouse. All of these elements converge into a single case, requiring a multifaceted response.   If jurisdiction is misjudged at the initial stage, the case may be dismissed. Likewise, if the other party’s arguments are not effectively challenged, achieving the desired outcome becomes difficult. In matters where legal standards and administrative procedures intersect, the need for professional guidance from the outset is evident.   At our firm, cases are handled jointly by attorneys certified by the Korean Bar Association as specialists in family law, together with legal representatives experienced in immigration matters. This allows us to provide strategic support at every stage—from international divorce proceedings to post-divorce residency issues.   Because there are so many variables in such cases, proceeding alone carries considerable risk. Setting the right direction from the very beginning is the most important first step.