In a case where Party A and Party B, who is a legal married couple for about 25 years, are de facto terminated with all exchanges, and Party A gave birth to Party B while maintaining a de facto de facto marital relationship with other women for 25 years, and Party B claimed a divorce against Party B, the case holding that there exists a ground for divorce under Article 840 subparag. 6 of the Civil Act “where there exists a serious reason for making it difficult to continue the marriage” in the marriage between Party A and Party B.

In a case where Gap and Eul, a legal married couple for about 25 years, are isolated from each other, and in fact, Gap and Eul are in a variety of exchanges, while maintaining a de facto marital relationship with other women for 25 years, and Gap gave birth to the married woman Eul, and Gap filed a claim for divorce against Eul, the case holding that even if Gap and Eul were to have a de facto separate marital relationship for 25 years or longer due to Gap's cause attributable to Gap, the fact that the substance of marriage has been completely resolved, and Eul and Eul have an independent living relationship, and as Gap and Eul have long-term state of resolving their communal living relationship, Gap's liability has been reduced to a considerable extent with the end of the third month and its social awareness or legal assessment has to change, and therefore, Gap's serious liability for divorce is difficult to determine whether Gap and Eul have reached a divorce with other women for 25 years, and it seems that the legal and social significance of liability has significantly decreased, and the cause for divorce between Gap and Eul exists in accordance with Article 80 of the Civil Act.

Article 840 subparag. 6 of the Civil Act

Plaintiff (Law Firm Squa, Attorneys Lee In-type et al., Counsel for the plaintiff-appellant)

Defendant (Attorney Lee Jae-gu, Counsel for defendant-appellant)

Seoul Family Court Decision 2013Ra70630 decided October 29, 2014

August 21, 2015

1. Revocation of the first instance judgment.

2. The plaintiff and the defendant are divorced.

3. All costs of the lawsuit shall be borne by the defendant.

The same shall apply to the order.

1. Facts of recognition;

A. The original and the Defendant’s marital life until the time of the first marriage after the first marriage report

1) On December 18, 1970, the Plaintiff’s doctor, the Defendant’s father, the father’s father’s mother’s father, completed the marriage report on December 18, 1970, and thereafter, Nonparty 1 (1970), Nonparty 2 (1972) and Nonparty 3 (1974) in Samnam (1974).

2) The Plaintiff and the Defendant filed a dispute on June 24, 1980 when the Plaintiff and the Defendant had a big dispute over the appearance of TV set forth by the Plaintiff around the fourth grade of an elementary school and reported a divorce on June 24, 1980.

3) At the time of the divorce between the Plaintiff and the Defendant, at the time of the agreement, the Plaintiff brought up the Plaintiff’s children, but the Defendant, at the age of his children, left the Defendant’s residence in Gangnam-gu Seoul Special Metropolitan City ( Address 1 omitted) ○○ apartment 5 1003 and 1003, which had been living together at the time of the agreement, to raise the children, and the Defendant said that the Defendant

4) Around April 1982, the Plaintiff disposed of ○ apartment as indicated in the above paragraph (3) and purchased Seocho-gu Seoul Metropolitan Government ( Address 2 omitted) 22 dong 602 (hereinafter “instant △ apartment”) and moved into the said apartment together with his children. Around that time, the Defendant was living in the United States while going into his house and going into his house.

5) As to the above grounds for divorce, the plaintiff argued that the agreement has reached a divorce due to the defendant's mistake, such as the plaintiff's neglect of home, excessive drinking and outpatienting, and the plaintiff's mistake, such as the plaintiff's assertion that the plaintiff has reached a divorce due to the plaintiff's mistake, such as the plaintiff's neglect of home, excessive drinking and outpatienting, and failure to make living expenses, etc.

B. Marriage life of the plaintiff and the defendant before and after the second report of marriage;

1) In the United States, the Defendant returned to Korea on November 1, 1982, and found the above △△ apartment, and began to reside with his children with the Plaintiff’s consent, and made a move-in report on the above apartment around March 23, 1983.

2) On March 19, 1983, the second marriage report between the Plaintiff and the Defendant was completed, and the Defendant and their children resided in △ apartment in the instant △ apartment, but the Plaintiff did not return almost to Korea on the ground of the extinguishment with the Defendant.

3) After the divorce with the Defendant, the Plaintiff liveded with Nonparty 4 for about two years after the divorce. From October 1984, after the second marriage report, the Plaintiff liveded with Nonparty 5 for about two years.

C. The plaintiff and the non-party 6's live together and childbirth

1) On April 1987, after settling the living together with the non-party 5 as set forth in the above paragraph (b)-3, the plaintiff was operated by the head of the Seongdong-gu Seoul Metropolitan Government Hospital that was operated by the defendant's friendship on April 1987, and became aware of the non-party 6 who was employed by the above hospital as a nurse at the above hospital.

2) Around November 1990, the Plaintiff began to live together with Nonparty 6, along with Nonparty 6. On March 5, 1994, the Plaintiff generated Nonparty 7 among Nonparty 6.

D. Litigation relationship between the plaintiff and the defendant

1) In around 1993, the Plaintiff filed a lawsuit seeking confirmation of nullity of marriage against the Defendant with Seoul Family Court 93D7472, but in the above case, there is no evidence to prove that the Defendant unilaterally completed the marriage report with the Plaintiff by stealing the Plaintiff’s seal on March 19, 1983, after the agreement with the Plaintiff was reached with the Plaintiff, and even if the Plaintiff’s assertion was acknowledged, the judgment against the Plaintiff was rendered on December 16, 1994 on the ground that the Plaintiff’s assertion was ratified as null and void.

2) The Plaintiff appealed to Seoul Family Court No. 95Reu17 and added a preliminary divorce claim, but the Plaintiff’s appeal and the said preliminary claim were all dismissed on June 14, 1995, and the Supreme Court Decision No. 95Meu731, Nov. 21, 1995, which was the final appeal, dismissed, and the judgment against the Plaintiff became final and conclusive.

E. Period of stay and the present situation up to now;

1) Since the Plaintiff started living with Nonparty 6 from November 1, 1990 as described in the above paragraph (c)-2, the Plaintiff continued living with Nonparty 6 in Gangnam-do until now, and the Defendant has resided in the instant △ apartment in the name of the Plaintiff for about 25 years while living in the instant △ apartment.

2) The Plaintiff and the Defendant, during the above separate living period of around 1997, are leaving without any contact with Ha, etc., except when attending the marriage ceremony of Nonparty 1 in the south of 197.

3) The Plaintiff: (a) paid to Nonparty 1 in the Republic of Korea from around 1990 to around 1994 with school expenses and money sufficiently; (b) from around March 1995 to June 201, the Plaintiff supported KRW 361 million with school expenses and living expenses, including KRW 300 million with the whole tax fund; (c) has transferred KRW 1 million per month to Nonparty 2 in the education expenses for the long time; and (b) from around March 1995 to March 2009, the Plaintiff subsidized KRW 190 million with school expenses and living expenses including KRW 190 million with the whole tax fund from around March 1995 to around March 2009; and (d) from around March 3, 1997 to around December 16, 200 million with Nonparty 3 who is a doctor.

4) During the period of separate residence with the Plaintiff, the Defendant assumed the child support and education expenses for children while operating kindergartens, child-care centers, post-care centers, etc., and was economically burled and given each donation of land, commercial buildings, apartment houses, etc. to their children.

5) The plaintiff and the non-party 6 were present at the regular visit of the non-party 2 in the end of 2006, but the plaintiff did not participate in the marriage ceremony between South and North Korea. The children of the plaintiff and the defendant found the paper plaintiff even during the separate stay period of the plaintiff and the defendant, and exchanged with the plaintiff, such as the plaintiff who met the plaintiff, the non-party 6 and the non-party 7 of the Lee Jong-nam and the Lee Dong-dong, or going to travel together (However, the non-party 2 of South and North Korea did not exchange with the plaintiff since 2010).

6) The children of the original and the Defendant have experienced confusion and suffering due to the dispute of the original and the Defendant for a long time, such as submitting to the first instance court a certificate or written statement stating that they agree to the Plaintiff’s position or the Defendant’s position, and submitting materials to reverse it again.

[Reasons for Recognition] Each statement or image of Gap's evidence Nos. 1 through 14, 24, Eul's evidence Nos. 1 through 4, 12 through 20 (including each number, if any), the witness of the trial, the non-party 1, the non-party 2, and the non-party 3's testimony and the purport of the whole pleadings

2. Determination on the claim for divorce

(a) The failure of marriage;

Taking into account the following circumstances revealed based on the above facts: (a) the Plaintiff and the Defendant were living separately for about 25 years since November 1990 to the present; (b) the Plaintiff gave birth to a married woman while maintaining a de facto marital relationship with another woman for about 25 years; and (c) there was no intention to maintain a marital relationship with the Defendant by filing the instant divorce lawsuit following the divorce lawsuit; (d) the Defendant did not contact the Plaintiff during a period of about 25 years; and (d) it is difficult to find out all the circumstances that the Plaintiff attempted to communicate, correspondence, visit, or make other serious efforts to recover the marital relationship with the Plaintiff; and (d) the Plaintiff’s children are recognized that the marital relationship with the original and the Defendant became extinct due to the complete de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto de facto marriage.

B. The cause of the failure

Furthermore, as seen in the above facts, it is reasonable to view that the plaintiff and the defendant committed an unlawful act with other women even after the plaintiff and the defendant completed the second marriage report on March 19, 1983. From November 1990 to the non-party 6, they maintained a de facto marital relationship with the non-party 6 and gave birth to the non-party 6. As such, the responsible spouse who is mainly responsible for the failure of the marriage is governed by Article 840 subparagraph 6 of the Civil Act and cannot file a claim for a divorce due to the failure (see, e.g., Supreme Court Decisions 90Meu95, Apr. 27, 1990; 92Meu90, Mar. 9, 1993).

C. Claim for divorce by a responsible spouse

1) However, the Supreme Court’s precedent that does not grant a divorce claim by a responsible spouse is contrary to the morality required by the marriage system and prevents the outcome contrary to the good faith principle. Thus, inasmuch as marriage system is pursued and in light of the good faith principle, in a case where the responsibility of a spouse does not remain to the extent that the claim for divorce should be rejected, such a claim for divorce claim by a spouse is not likely to disrupt marriage and family system, and is not contrary to the morality and ethics of the society

Therefore, in a case where there is no concern about divorce or divorce by one’s will because the other spouse has no intention to continue the marriage, as well as where protection and consideration has been given to the other spouse and children to offset the responsibilities of the other spouse claiming divorce, the claim for divorce by one’s responsible spouse may be allowed in exceptional cases where there are special circumstances, such as in a case where the liability for the failure of the marital life is no longer serious enough to reject the claim for divorce, such as in a case where the liability of the responsible spouse for the failure of the other spouse and the mental suffering suffered by the other spouse at the time of the marriage has been deteriorated as of the end of the third month, and where the other spouse has been able to protect and take account of the other spouse’s ability to offset the responsibilities of the other spouse claiming divorce, the other spouse’s intention to continue the marriage and the responsible spouse’s age, specific living relationship after marriage, period and period of separate marital life, separate marital relationship between the husband and wife, the marital relationship formed after the marriage between the other spouse, the degree of mental and economic situation of the other spouse’s living security 15.

2) In light of the above legal principles, considering the following circumstances acknowledged by the above evidence and the purport of the whole arguments, i.e., the plaintiff's 6-year marriage relationship between the plaintiff and the non-party 6-year marriage, (i) even if the plaintiff and the non-party 6-year marital distress occurred in full due to reasons attributable to the plaintiff, the substance of the marriage has been completely resolved and the defendant has an independent living relationship with the plaintiff as long as 25-year life continues, and (ii) as the plaintiff's state of resolving communal living relationship between the plaintiff and the defendant has been long-term, the plaintiff's ties is considerably weak and the plaintiff's social perception or legal assessment has no choice but to vary. Thus, it seems that the plaintiff's legal and social significance has been significantly decreased when the plaintiff and the non-party 6-year marital distress were not brought about due to the plaintiff's reason for divorce. In light of the above legal principles, it is questionable whether the plaintiff and the non-party 6-party 1, who refused divorce, still has an intention to maintain the marital relationship between the plaintiff and the defendant.

3. Conclusion

If so, the plaintiff's claim is reasonable, and the judgment of the court of first instance is unfair with different conclusions, so the judgment of the court of first instance is revoked and the plaintiff's claim is accepted, and it is so decided as per Disposition.

Judges Min You-sook (Presiding Justice)