In fact, if a legal spouse, other than the spouse, has a separate spouse, whether the de facto relationship with the spouse constitutes “ de facto marriage” under Article 3(1)4 of the Military Pension Act (negative)

In light of our family law system under which the principle of statutory divorce and the principle of prohibition of middle marriage are Daejeon, the purport of Article 3(1)4 of the Military Pension Act’s Article 3(1) includes “a person in a de facto marital relationship” in a spouse entitled to a survivor pension is to protect the spouse in a case where a person has the substance of marriage by running a marital life and is not recognized as a legal marriage because there is no report of marriage, and thus, the de facto marital relationship is not to protect the spouse in a case where there is no legal marriage. In fact, in a case where there is a legal spouse other than the spouse, the relationship with the spouse does not constitute “ de facto marital relationship” under the Military Pension Act, except in exceptional cases such as where legal divorce remains due to the form of procedure and non-litigation, even though there was a consent of the intention of divorce.

Articles 3(1)4(a) and 26 of the former Military Pension Act (Amended by Act No. 8151, Dec. 30, 2006);

[Plaintiff-Appellant] Plaintiff 1 and 1 other (Law Firm Doz., Counsel for plaintiff-appellant)

[Defendant-Appellant] Plaintiff (Law Firm Dongwon, Attorney Lee Jung-il, Counsel for defendant-appellant)

The Minister of National Defense

Seoul High Court Decision 2006Nu4822 delivered on November 1, 2006

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

We examine the grounds of appeal.

In light of the legal system of our family law, which is taking into account the principle of legal divorce and the principle of prohibition of middle marriage, the purport of Article 3(1)4 of the Military Pension Act’s Article 3(1) includes “a person in a de facto marital relationship” in a spouse entitled to a survivor pension is to protect the spouse in a case where a person has the substance of marriage by running a marital life, but is not recognized as a legally marital relationship because there is no report of marriage, and thus, the de facto marital relationship is not to protect the spouse in a case where there is no legal marriage. In fact, if there is a legal spouse other than the spouse, the relationship with the spouse cannot be deemed as a de facto marital relationship under the Military Pension Act, except in exceptional cases such as where legal divorce remains due to the form and non-legal divorce, even though there was a consent of the intention of divorce. (See Supreme Court Decision 93Nu1497 delivered on July 27, 1993).

According to the reasoning of the judgment below, the court below determined that: (a) the deceased non-party 1, who received a retirement pension, gave birth to her husband and wife while maintaining her marital relationship from around 1984; (b) the non-party 2, who is a legal spouse, did not live together; (c) the non-party 1 continued to pay living expenses to the non-party 2 without divorce due to the non-party 2’s refusal; (d) provided the building located in the Dobong-gu Seoul Metropolitan Government Dongdong-dong to the non-party 2; and (e) allowed the non-party 1 to use income coming from his store in the building by taking care of the non-party 2 for the cost of living; and (e) the non-party 1 did not agree on the property relationship with the non-party 2 on August 29, 2002; and (e) reported de facto divorce on May 17, 2002, the plaintiff and the non-party 1 did not have a legitimate marital relationship between the plaintiff and the non-party 2.

In light of the above legal principles and records, the above recognition and judgment of the court below is acceptable, and there is no error of law by misunderstanding the legal principles under Article 3 (1) 4 of the Military Pension Act, as otherwise alleged in the ground of appeal.

Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Jeon Soo-ahn (Presiding Justice)