Whether a report of divorce by agreement is valid with the intention to temporarily resolve the marital relationship (affirmative)

In the case of divorce by agreement, the intention of divorce refers to the intention of resolving the legal marital relationship. Thus, insofar as a divorce by agreement is reported under the agreement between the parties who intend to temporarily resolve the marital relationship, it cannot be said that there is no intention of divorce between the parties even if there is another purpose in the divorce by agreement. Therefore, such divorce by agreement shall not be null and void.

Articles 834 and 836 of the Civil Act

Supreme Court Decision 75Do1712 delivered on August 19, 1975 (Gong1975, 8664) 76Do107 delivered on September 14, 1976 (Gong1976, 9356) decided July 28, 1981 (Gong1981, 14264)

Plaintiff 1 and one other

Defendant

Daegu High Court Decision 92Reu427 delivered on December 16, 1992

The part of the judgment of the court below regarding the invalidity of divorce shall be reversed and the case shall be remanded to the Daegu High Court.

The defendant's remaining appeals are dismissed.

The costs of appeal dismissed shall be assessed against the defendant.

As to the Defendant’s ground of appeal

According to the reasoning of the judgment of the court of first instance cited by the court below, the deceased non-party 1 and the deceased non-party 1 are legally married couple who completed the marriage report on June 26, 1962, and they requested the deceased non-party 1 to leave the deceased non-party 1 as the head from May 1980 when the deceased non-party 1 entered the home and worked on the farming house, and the deceased non-party 2 and the mother, the head of the deceased non-party 1, who was the mother, from May 1980, demanded the deceased non-party 1 to leave the deceased non-party 1, the status of the deceased non-party 1 cannot claim wages for the fact that the deceased non-party 1 had worked on the farming house during the period, and the fact that the consultation was reported on January 16, 1981 under the agreement between the defendant and the deceased non-party 1 continued to maintain the marital relationship. Thus, the deceased non-party 1 and the deceased non-party 1 had no intention to abolish 1 to discard his status.

However, in light of the legal importance of the divorce declaration under the formal principle as to whether divorce takes effect, the intention of divorce in divorce is the intention to resolve the legal marital relationship. Thus, insofar as a divorce declaration is filed under the agreement between the parties intending to temporarily resolve the marital relationship under the law, it shall not be said that there is no intention of divorce between the parties even if there is any other purpose in divorce, and therefore the agreement shall not be null and void (see Supreme Court Decision 76Do107 delivered on September 14, 1976; 80Meu77 delivered on July 28, 1981).

Therefore, insofar as it is recognized that Defendant 1 and the deceased Nonparty 1 reported a divorce temporarily under the agreement to report the divorce, even though they did not have the intention to resolve the de facto marital relationship in reporting the divorce, and even if Nonparty 1 had the intention to claim wages against the principal and the mother, it cannot be deemed null and void due to lack of intention to divorce.

The judgment of the court below should have misunderstanding the legal principles on the intention of divorce in the divorce by agreement. The arguments are reasonable.

Although the Defendant was fully dissatisfied with the judgment of the court below, the Defendant did not submit the appellate brief on other points.

For the above reasons, the part of the judgment of the court below regarding the invalidity of divorce is reversed, and this part of the case is remanded to the court below. The defendant's remaining appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided

Justices Yoon Young-young (Presiding Justice)