2013drid 6331 Divorce, Division of Property, etc.

A

B

September 24, 2013

January 28, 2014

1. The plaintiff and the defendant are divorced.

2. The costs of the lawsuit are assessed against the defendant.

The same shall apply to the order.

1. Facts of recognition;

A. The Plaintiff and the Defendant married on April 25, 1990. The Plaintiff and the Defendant already have two children of full age.

B. From the date of marriage, the Plaintiff’s mother and the Defendant were seriously faced. Accordingly, the aggravation of the relationship between the Plaintiff and the Defendant began from February 1995. The Plaintiff filed a divorce lawsuit against the Defendant around 1997. A judge in the instant case recognized the Plaintiff as a responsible spouse and dismissed the Plaintiff’s claim for divorce on the ground that the Plaintiff was unable to properly arbitrate the conflict and was in an inappropriate relationship with the female employee of the Plaintiff.

D. After November 199, the Plaintiff and the Defendant had been living separately until now except where they had tried to temporarily make decisions. The Plaintiff mainly retired from office in financial areas, such as banks, etc., and the Defendant had been under his own clothes until now, while maintaining their livelihood. From 2002 to 2011, the Plaintiff paid to the Defendant KRW 400,000 to 120,000 per month, and paid part of the university registration fees, etc. to the Defendant.

[Ground for Recognition: Evidence No. 1 to 3, Evidence No. 1 to E, Evidence No. 1, family investigation report by family affairs investigator, purport of whole pleadings]

2. The assertion and judgment

A. We examine whether there exists a cause for divorce under Article 840 subparag. 3 and 4 of the Civil Act. The Plaintiff asserts that the Defendant’s assault and verbal abuse to the Plaintiff was multiplely committed by the Plaintiff, and that the instant marriage was broken down by his mother’s self-gradation, but it is not sufficient to recognize the marriage relationship solely with the statement of evidence No. 6, and there is no other evidence to acknowledge it. Thus, the Plaintiff’

B. We examine whether there is a reason for divorce under Article 840 subparagraph 6 of the Civil Act. The term "if there is a serious reason for making it difficult to continue the marriage, which is the reason for divorce under Article 840 subparagraph 6 of the Civil Act" means the case where the communal living relationship corresponding to the essence of the marriage, which should be based on difficulties and trust between the married couple, has broken down to the extent that it is impossible to recover and compelling the continuance of the marital life, and the one spouse to continue the marital life is not able to join. In determining this, the existence of intention to continue the marriage, whether there is a party responsible for the cause of the failure of marriage, period of marital life, existence of children, age of the parties, guarantee of livelihood after the divorce, and other circumstances of the marital relationship, shall be taken into consideration equally. In light of all the above circumstances, if it is recognized that the marital relationship between the married couple has ceased to exist to the extent that the plaintiff's responsibility for the cause of the failure is greater than the defendant's responsibility, a claim for divorce shall be accepted (see, etc.

In light of the following circumstances recognized by the aforementioned facts and the purport of the family investigation report and arguments by family affairs investigator, namely, the plaintiff and the defendant living separately for about 18 years while living in different areas, and their children have already become adults, the plaintiff has been working in the financial authority for a separate period, and the defendant has operated his own economic activities until now, and the plaintiff strongly sought divorce, the defendant does not want divorce, but does not make special efforts to recover the actual marital relationship between the plaintiff and the defendant, even if the divorce lawsuit in this case is dismissed, it is extremely unlikely for the plaintiff to recover the marital relationship, and it is sufficient to view that the marital relationship between the plaintiff and the defendant has been broken down to the extent that it is impossible to recover the plaintiff due to the loss of patriotism and trust, and that compulsory enforcement of the marital life has no special responsibility for divorce between the plaintiff and the defendant for a prolonged period of up to 18 years. Therefore, it is difficult to view that there is no special reason for divorce between the plaintiff and the defendant.

C. On this issue, the defendant asserts to the effect that the plaintiff's claim for divorce should be dismissed since the plaintiff left his/her own and his/her children for a long time and had been living together with other women.

However, even if the marital life of the Plaintiff and the Defendant were to have reached a state of distress so that they could not recover, in principle, the spouse who is mainly responsible for the failure of the marital life may not file a petition for divorce on the ground of the failure. However, even if the other party is objectively evident that he/she had no intention to continue the marriage after the failure, the claim for divorce by the responsible spouse is exceptionally allowed only in special circumstances, such as where he/she did not comply with the divorce in misunderstanding or retaliation sentiment (see, e.g., Supreme Court Decision 2004Meu103, Sept. 24, 2004). In this case, the Defendant’s assertion that the Plaintiff left his/her own and his/her children for a long time and did not live together with another female even until the last time is neglected, there is no evidence to acknowledge it as to the Defendant’s assertion that the Plaintiff had been married with the female employee of the Plaintiff at the time of filing a divorce suit in around 1997. However, it is difficult to conclude the dilution by such circumstance alone.

Although the Defendant asserts that he continued to endeavor to live in a different manner with the Plaintiff, and that he delivered various gifts in line with the birth and life of the mother, delivered children to Seoul on various designated dates and sent them to Seoul, there is no evidence to acknowledge it, and even if it is recognized that the latter is true, it is difficult to deem that the Defendant made full efforts to recover the marriage between the Plaintiff and the Defendant.

Therefore, the defendant's above assertion is without merit.

3. Conclusion

The plaintiff's claim for divorce of this case shall be accepted on the grounds of its reasoning, and it is so decided as per Disposition.

Judges Park Jae-in