KWDI Korean Women’s Development Institute

Korea's divorce laws have been formulated, mostly based on Japan's legal system, without the benefit of research on foreign cases or fully considering public sentiment, and therefore are exposed to inborn limitations. The system for a divorce by agreement has undergone several rounds of revisions, promoting changes in terms of gender equality and children welfare. However, provisions regarding divorce reasons, in relation to judicial divorces, have been little altered over the past several decades. Therefore, Korea's current divorce laws should be further reviewed in order to identify whether they properly reflect Korea's realities on marriage and divorce. In this vein, there is more need to reorganize the legal system to make sure that the structure coincides with public senti- ment, promotes the welfare of family members, and faithfully reflects the concepts of justice and equality. In particular, considering changes in the Korean society in terms of marriage, divorce, and family relationships that have been witnessed over the past several decades, the issue should be more thoroughly handled. Against this backdrop, focusing on judicial divorces that the 2011 research study did not deal with, this paper is designed to look into the possibility of accepting the Act regarding the principles of matrimonial breakdown as a means to lead parties concerned to resolve conflicts peacefully, and thereby to have positive effects on restoring broken family relationships and helping parents take care of their children after divorce. The plans for reforming the divorce legal system will also be studied in order to ensure the welfare of children in the process of dissolving marriages. This research study consists of the following chapters: Chapter I briefly describes the needs, objectives, content, and methodology of this research study in order to present the direction thereof. Chapter II looks into changes in the Korean society & in divorce laws and analyzes the details of ‘divorces by agreement’ and ‘judicial divorces' to help understand the current divorce legal system & the operation thereof, and review what should be improved. Chapter III reviews the legislation examples of foreign countries that accepted the principles of matrimonial breakdown before Korea did in order to identify their implications for Korea's divorce legal system reforms. Chapter IV analyzes the Supreme Court's rulings regarding a guilty spouse's claim for divorce in order to identify the degree to which Korea's courts accepted the principles of matrimonial breakdown. Chapter V analyzes the results of the survey of the general public and experts, which will be used as basic data for identifying plans to reform Korea's divorce legal system, in order to study the perspectives of the Korean society regarding marriage and divorce, the degree to which the Korean society accepts the principles of matrimonial breakdown, and the opinions of the general public regarding divorce system reforms. Chapter VI presents the future direction of Korea's divorce laws including both ‘divorces by agreement’ and ‘judicial divorces’, based on the aforementioned research results. Namely, leaving the door open for restoring failed marital relationships, sufficient attention should be paid to parties concerned and their children in order to prevent them from being harmed. The final chapter proposes reasonably improving divorce procedures to achieve the objectives of divorce laws. Furthermore, the acceptance of breakdown principles, integration of ‘divorces by agreement’ & ‘judicial divorces’, and reinforcement of the role of a family court as a guardian in the process of procedural support that this research study proposes can be considered as a solemn request for changes in the role of a court that has served only as a venue to resolve intractable conflicts. To this end, additional facilities and equipment should be set up, securing more human resources.