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you are here: > Korean Civil Code
> Article 132
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4. Human relationships |
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| 4.2 Standards of union between human beings | ||
| Article 132-Effects of dissolution of certified union | ||
| 132.1 | Effects of dissolution of certified union | |
| The effect of a dissolution of certified union is that the legal personality of a family is dissolved and that all community property is separated and all custodial elements are resolved. | ||
| Ideally, such action should occur without the need of the courts and by consentual application of both parties. However, as in many things in life, the nature of separation can result in acrimonious conditions whereby the nature of community property and custodial elements are disputed. | ||
| In such circumstances, it is not the preferred role of the Courts, nor of this Code to become final arbiter on the sadness and bitterness of a family union dissolved, nor of the effect of various custodial orders that may be entailed. For in any action, particularly when children and animals are involved, the result of any Court action will always be painful for all concerned. | ||
| Therefore, to minimize the pain, the limit the trauma that any children and indeed the parties of a Contestable Divorce Application experience, this article provides the mandated elements of consideration in any dissolution of certified union by Contestable Divorce Application. | ||
| 132.2 | Establishment of community property and financial position | |
| The first requirement of any hearing of a Contestable Divorce Application is to establish the true and accurate position of community property and the financial position of the family. | ||
| This shall be according to the original financial statement of both parties prior to legal union, excluding permitted items to be immune from community property, plus any and all items acquired since the union. | ||
| 132.3 | Establishment of custodial elements | |
| The second requirement of any hearing of a Contestable Divorce Application is to establish any children and animals that may be subject to custodial dispute. | ||
| While it is the second requirement, custodial matters should always be handled first. | ||
| The rules for custodial determination are based on the following: | ||
| (i) Is the parent a fit and proper person? | ||
| (ii) Is the parent capable of providing temporary or permanent accomodation for the children without disrupting their current schooling and community relationships? | ||
| Fit and proper person | ||
| If one of the reasons of a divorce relates to a spouse showing a lack of self restraing and/or moral behaviour around children, then automatically that parent shall need to show good cause why they should not lose a significant portion of their custodial rights, whether or not that spouse is the mother or the father of the children. | ||
| While testimony from the children is strictly forbidden under any circumstances, testimony from non family members is permissable as to the question of character of a spouse as to hold primary custody, joint custody, secondary custody or no custodial rights. | ||
| The court must not make the assumption that just because a parent is the mother, that they hold greater custodial rights because of that fact. Such bias is both unjust and unlawful. On the contrary, it is through the establishment of the fit and proper credentials of both parents that custody is determined. | ||
| Jointly unfit | ||
| If the parents in a Contestable Divorce Application are found through evidence to both be unfit proper persons, then the Court must act to have custody withdrawn for both parents and the children placed in the care of either relatives who are established of good character, or under the protection of guardians and/or foster program. | ||
| 132.4 | Community property determination | |
| Under community property determination, the custodial rights of the parents is not used to factor the division of assets and liabilities as any additional support requirements are listed under paternal financial support orders. | ||
| However, the person making the Contestable Divorce Application does affect the condition of determination. | ||
| 132.5 | If person making Contestable Divorce Application male/primary income provider and first marriage | |
| If the length of the legal union is less than six years, then they shall be entitled to 80% of community property; | ||
| If the length of the legal union is more than six years but less than twelve years, then they shall be entitled to 65% of community property; | ||
| If the length of the legal union is greater than twelve years, then they shall be entitled to half of community property; | ||
| 132.6 | If person making Contestable Divorce Application female/secondary income provider and first marriage | |
| If the length of the legal union is less than six years, then they shall be entitled to 20% of community property; | ||
| If the length of the legal union is more than six years but less than twelve years, then they shall be entitled to 35% of community property; | ||
| If the length of the legal union is greater than twelve years, then they shall be entitled to half of community property; | ||
| 132.7 | If person making Contestable Divorce Application male/primary income provider and second or more marriage | |
| If the length of the legal union is less than six years, then they shall be entitled to 90% of community property; | ||
| If the length of the legal union is more than six years but less than twelve years, then they shall be entitled to 80% of community property; | ||
| If the length of the legal union is greater than twelve years, then they shall be entitled to 65% of community property; | ||
| 132.8 | If person making Contestable Divorce Application female/secondary income provider and second or more marriage | |
| If the length of the legal union is less than six years, then they shall be entitled to 10% of community property; | ||
| If the length of the legal union is more than six years but less than twelve years, then they shall be entitled to 20% of community property; | ||
| If the length of the legal union is greater than twelve years, then they shall be entitled to 35% of community property; | ||
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