How is property split when a Korean and a foreigner divorce?

You can claim a share of everything you and your spouse built up together, whatever name the asset stands in, and running the home and raising children count as a contribution to building it. Where no agreement is reached, the amount and the method are fixed by the family court, which weighs the size of the property and the surrounding circumstances. Two clocks matter much more for a foreign spouse than for a Korean one. The claim is gone once 2 years have passed since the divorce, and after you leave the country the practical ability to find and freeze anything shrinks fast. Start by writing down what you know exists, not what you feel owed.

Does my name have to be on anything?

No. What is divided is property built through the cooperation of both spouses, so an apartment registered only in your spouse's name, savings in that name, a retirement entitlement or a business interest can all be brought into the pot. What a spouse brought into the marriage, or received as a gift or an inheritance, is treated differently, and whether such an item is included at all depends on how long the marriage lasted and whether the other spouse helped to keep or increase its value.

Where the home was registered in a parent in law's name, which is common in these marriages, the asset is not simply out of reach. It becomes a question of who paid for it and with what, and that is argued with bank records.

Which country's law decides?

Korean conflict rules work as a ladder. A divorce is governed by whatever nationality the spouses have in common; failing that, by the country where they habitually live together; failing that, by whichever country the marriage is most closely bound up with. One rule overrides the ladder: where either spouse holds Korean nationality and habitually lives in Korea, the divorce is decided under Korean law. The couple's property arrangements climb the same ladder, and spouses may step off it by agreement, picking the home country of either of them, the country where either habitually lives, or, for land and buildings, wherever the property sits. Such an agreement counts only if it is written, dated, and signed or sealed by both. Even then, an arrangement made under foreign law has limited effect against outsiders dealing with assets in Korea.

In practice, a foreign spouse married to a Korean who lives in Korea should expect Korean law to be applied.

I do not know what my spouse owns. Can the court find out?

This is where foreign spouses most often give up, and the tools exist:

• An order to list assets. In a property division, maintenance or child support case the court can order a party to file a list setting out the state of their property.
• A search of records. Where the list filed is not enough to decide the case, the court can inquire into property held in that party's name, through public bodies, financial institutions and other organisations.
• Freezing measures. The family court can order provisional attachment or an injunction with the main case behind it, and it can do so without requiring security.
• Interim orders. Once a case or a conciliation application is filed, the court can forbid a party from disposing of things, and can order steps to preserve the property in dispute.
• Undoing a transfer. Where a spouse disposed of property knowing it would defeat your division claim, you can apply to the family court to cancel that act and restore the position, within the period the Civil Act sets for such a claim.

How long do I actually have?

Two years after the day the divorce took effect, the division claim is extinguished, and that limit is not stretched because you were abroad or waiting for an answer. Where the divorce was by mutual agreement, count from the day it was reported and registered; where it came from a court, count from the day the judgment or the conciliation became final. Division and child arrangements go to conciliation first, so build that time into your 2 years rather than filing in the last month.

Is this the same as 위자료?

No, and mixing them up loses money. 재산분할 divides what the marriage produced. 위자료 is compensation for the harm caused by the breakdown, including mental suffering, claimed against the spouse at fault. They rest on different grounds, are calculated differently, and are claimed in the same proceedings without one cancelling the other. A settlement paper that names only one of them may be read as giving up the other, so do not sign a Korean settlement document before someone on your side has read it to you.

Can I still claim after I return home?

Yes, with preparation. Appoint a representative with a written power of attorney, give an address in Korea where court papers can be served, and arrange how money would reach your account abroad. Enforcement in Korea reaches assets in Korea, so freezing measures taken before you fly are worth more than arguments made after.

Next step

List every asset you can name, with how you know it exists: an address, an account, a car, a shop, a photograph of a document. Add the date of your divorce, or the date you expect it. That sheet decides whether the first step is a freezing application or an order to list assets. Our consultations are paid, and the fee is explained on the call before you come in.

법무법인 대한중앙
1533-7377

Rules applied

Civil Act (민법) Article 839-2(1) (either spouse in a divorce by agreement may claim division), (2) (where there is no agreement, the family court sets the amount and method considering the property built by the cooperation of both spouses and other circumstances) and (3) (the claim is extinguished 2 years after the divorce), Article 839-3 (cancellation and restoration where a spouse disposed of property knowing it would defeat the division claim, within the period under Article 406(2)), Article 843 (these provisions, and damages under Article 806, apply to a judicial divorce), Article 806(2) (damages cover mental suffering as well as property loss). Act on Private International Law (국제사법) Article 56(1) (international jurisdiction in marital cases), Article 64 (general effects of marriage: common national law, common habitual residence, closest connection), Article 65(1) and (2) (matrimonial property regime; written, dated and signed choice of law) and (3) (limits against third parties in Korea), Article 66 (divorce follows Article 64, but Korean law applies where one spouse is a Korean national habitually resident in Korea). Family Litigation Act (가사소송법) Article 2(1)2(b) item 4 (division of property under Article 839-2(2) of the Civil Act), Article 48-2 (order to file a property list), Article 48-3 (inquiry into property; results not to be used outside the case), Article 50 (conciliation first), Article 62 (interim orders), Article 63 (provisional attachment and injunction, without security).

This is general information, not legal advice. Every case is different.