[1] The meaning of "where there is a serious reason making it difficult to continue the marriage" under Article 840 subparagraph 6 of the Civil Code and the criteria for its determination

[2] The case holding that there exists a cause of divorce under Article 840 subparagraph 6 of the Civil Code, since the responsibility of "the responsible spouse" claiming a divorce under the circumstance that the substance of the marriage is completely dissolved does not focus on rejecting the claim for divorce in light of the purpose pursued by the marriage system and the guiding ideology of the Civil Code in light of the good faith principle

[1] "When there is a serious reason for making it difficult to continue the marriage," which is a cause of divorce under Article 840 subparagraph 6 of the Civil Code, means the case where the marital relationship which corresponds to the essence of the marriage has been broken down to the extent that it is impossible to recover, and compelling the continuation of the marital life to the extent that it becomes impossible for one spouse to join the other spouse. In determining this, the existence of intention to continue the marriage, the liability of the parties to the cause of the failure of marriage, the period of marital life, the existence of children, the party's age, the guarantee of livelihood after divorce, and

[2] The case holding that there exists a cause of divorce between Gap and Eul, even though Gap and Eul have been filed for divorce, on the grounds that the marriage between Gap and Eul has been broken down to the extent that it is impossible to recover the marital relationship corresponding to the essence of the marriage, and that compelling the continuance of their marital life would result in an unreparable pain for one spouse, taking into account all circumstances such as the separation for a longer period exceeding 11 years between Eul and Eul, the formation of a de facto marital relationship between Byung and Byung, and the childbirth of their children, etc.

[1] Article 840 subparagraph 6 of the Civil Code / [2] Article 840 subparagraph 6 of the Civil Code

[1] Supreme Court Decision 90Meu1067 delivered on July 9, 1991 (Gong1991, 2158) Supreme Court Decision 2007Meu1690 Delivered on December 14, 2007

Plaintiff (Law Firm LLC, Attorneys Kim Gi-hoon et al., Counsel for the plaintiff-appellant)

Defendant

The principal of the case and one other

Gwangju High Court Decision 2008Reu242 decided June 5, 2009

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

The grounds of appeal are examined.

1. Regarding ground of appeal No. 1

A. "When there is a serious reason for making it difficult to continue the marriage," which is a cause of divorce under Article 840 subparagraph 6 of the Civil Act, means the case where the marital relationship between the couple's common life corresponding to the essence of the marriage has been broken down to the extent that it is impossible to recover, and compelling the continuance of the marital life to continue the marital life becomes an uncomponible pain for one spouse (see, e.g., Supreme Court Decisions 90Meu1067, Jul. 9, 1991; 2007Meu1690, Dec. 14, 2007). In determining this, the existence of intention to continue the marriage, the party's liability for the cause of failure, the period of marital life, the party's age, the party's livelihood guarantee after the divorce, and other circumstances of the marital relationship should be taken into

B. According to the reasoning of the judgment below, since the plaintiff (the plaintiff et al. of January 16, 1967) and the defendant (the plaintiff et al. of July 26, 1963) are legally married couple who completed the marriage report on December 12, 1990, and have the principal of the case (the minor child of April 4, 1993) and the principal 2 (the birth of October 22, 1994) of the case. The plaintiff was frequently under the defendant's frequent drinking and outpatienting, and was living separately on November 30, 197 while living together with the defendant's opinion on Sep. 30, 2003, the plaintiff had to be able to recover from the defendant's family life for 20 years after his birth, and the plaintiff was born to 10 years after 20 years after 10 years after 20 years after 20 years after 20 years after 20 years after 10 years after 20 years after 20 years after 20 years after 27 years after his first residential life.

C. Examining this in light of the above legal principles and records, the Plaintiff and the Defendant’s marital relationship has been completely resolved due to separate marriage for more than 1 year and formation of a de facto marital relationship between the Plaintiff and the Nonparty. In addition, the Plaintiff has given birth to her father and wife in de facto marital relationship, and treatment and rearing of her father and wife have been faced with necessary circumstances. The Plaintiff’s marital relationship may cause distress as above. The Plaintiff and the Defendant’s marital relationship did not make best efforts to overcome conflicts with the Defendant during the marriage period for more than 11 years except for those children’s temporary return to her home. In light of the above legal principles and records, it appears that the Plaintiff’s marital relationship is difficult to maintain the Plaintiff’s legal status and the Defendant’s current status of divorce, and it appears that it would cause the Plaintiff to continue to suffer conflict between her spouse and her spouse during the marriage period, and thus, it appears that the Plaintiff’s legal situation and the Defendant’s social situation would not have been able to change the Plaintiff’s marital relationship.

Although the reasoning of the court below is different from this, the conclusion of the court below's decision to the effect that the marriage of the plaintiff and the defendant exists the cause of divorce under Article 840 subparagraph 6 of the Civil Code is just and acceptable, and there is no error of law by misunderstanding the legal principles as to the cause of divorce under Article 840 subparagraph 6 of the Civil Code, as otherwise alleged in the ground of appeal.

2. Regarding ground of appeal No. 2

A. According to Article 837(4) and each subparagraph of Article 837(2) of the Civil Act, which is applicable mutatis mutandis by Article 843 of the Civil Act, in cases of a judicial divorce, when a consultation on matters concerning fostering is not reached or cannot be reached, the Family Court may ex officio determine the custodian, the burden of fostering expenses, the visitation right, and the method thereof. In cases of a judicial divorce pursuant to Article 909(5) of the Civil Act, the Family Court may ex officio determine the person with parental authority. Thus, in determining the above matters, the Family Court does not necessarily require the claim of the divorce party.

B. In the same purport, the court below is just to determine ex officio as to the custodian of the case, the burden of fostering expenses, whether or not the visitation right is exercised and the method thereof is exercised, and there is no error in the misapprehension of legal principles as to the interpretation and application of Articles 843, 837(3) and (2) and 909(5) of the Civil Act, as otherwise alleged in the ground of appeal.

3. Conclusion

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 Ahn Dai-hee (Presiding Justice)