DIVORCE BY AGREEMENT

1. Understanding Divorce by Agreement: Legal Basis and Overview

Divorce by agreement is a legally recognized form of dissolution of marriage under the Civil Act, allowing spouses to end their marriage amicably through mutual consent. Unlike contested divorces, where disputes arise over custody, property, or other matters, divorce by agreement focuses on an agreed resolution between husband and wife, making the process smoother and less adversarial.

The essence of a divorce by agreement is that both parties voluntarily consent to the divorce and related matters such as child custody, support, and property division. This consent is formalized through filing a joint written report, signed by both spouses and witnessed by two adults, which must be submitted to and confirmed by the Family Court.

Understanding the legal framework behind divorce by agreement is crucial for couples seeking a peaceful resolution without lengthy court battles. The Family Court plays a pivotal role in verifying and confirming the agreement to ensure fairness and legality.

2. The Procedure of Divorce by Agreement: Step-by-Step Guide

The process of obtaining a divorce by agreement involves several essential steps designed to protect the interests of both parties, especially when children are involved.

2.1 Guidance from the Family Court

Before a divorce by agreement can take effect, the Family Court mandates that couples receive proper guidance on divorce. This is to ensure that both parties fully understand the consequences and responsibilities of the divorce. The court may also recommend counseling sessions with professional counselors experienced in family matters if deemed necessary. This step aims to facilitate informed decisions and minimize misunderstandings.

2.2 Filing the Application for Confirmation

After receiving guidance, the party initiating the divorce by agreement must file an application with the Family Court to confirm their intention. The court then enforces a waiting period to allow reflection and ensure that the decision is made thoughtfully:

• Three months if the couple has children to care for, including unborn children.

• One month if there are no children involved.

These periods are designed to protect the welfare of children and provide time for reconsideration.

2.3 Exceptions for Urgent Cases

In urgent situations, such as cases involving domestic violence where the suffering of a party is unbearable, the Family Court may shorten or waive the waiting period. This ensures that victims can seek divorce protection promptly without unnecessary delays.

2.4 Documentation for Child Custody and Support

For couples with children, submitting appropriate documents is mandatory. This includes agreements on fostering, custody decisions, or official Family Court adjudications concerning parental responsibilities. The Family Court will also establish child support orders to confirm the agreed financial support, ensuring that children’s needs are met after the divorce.

3. Legal Effects and Confirmation of Divorce by Agreement

Once the Family Court confirms the divorce by agreement, the divorce becomes legally effective upon reporting. This formal confirmation ensures that the agreement complies with legal standards and protects the rights of both parties.

It is important to note that the written report must contain the joint signatures of both spouses and two adult witnesses. This formal documentation is a legal safeguard that prevents fraudulent claims or misunderstandings.

The confirmation of a divorce by agreement is more than just a procedural step; it marks the legal end of the marriage and the beginning of new responsibilities, particularly concerning children and property.

4. Property Division in Divorce by Agreement: Rights and Claims

An essential aspect of divorce by agreement is addressing the division of marital property. Either party can request the division of property following the divorce.

4.1 Mutual Agreement on Property Division

Ideally, spouses reach a mutual agreement on how to divide their property, reflecting fairness and cooperation. This agreement can cover all shared assets, debts, and financial responsibilities accumulated during the marriage.

4.2 Court Intervention When Agreement Fails

If the parties cannot reach an agreement or if no agreement is made, the Family Court steps in to determine the division of property. The court will consider factors such as the property acquired through joint efforts, the contributions of each spouse, and other relevant circumstances to ensure equitable division.

4.3 Time Limit for Claims

It is important to understand that any claim for property division after a divorce by agreement must be filed within two years from the date of the divorce. Claims made beyond this period will be extinguished by law, emphasizing the need for timely action.

5. Benefits of Divorce by Agreement Compared to Other Divorce Types

Choosing divorce by agreement offers multiple advantages over contentious divorce proceedings:

• Faster Resolution: Since both parties consent, the divorce process is typically quicker, avoiding prolonged litigation.

• Lower Costs: Reduced court involvement and legal fees make this option more economical.

• Amicable Terms: Couples maintain better relations post-divorce, especially important when children are involved.

• Clear Agreements: The process encourages detailed agreements on child custody, support, and property, minimizing future disputes.

6. Key Considerations When Pursuing Divorce by Agreement

While divorce by agreement presents a smoother path, couples should be mindful of several critical factors:

• Ensuring full understanding of rights and obligations through the Family Court’s guidance.

• Preparing all necessary documentation carefully, especially for child custody and property claims.

• Respecting the waiting periods unless urgent circumstances apply.

• Seeking professional counseling if needed to address emotional and legal complexities.

Adhering to these steps helps protect both parties and facilitates a fair and lawful divorce process.

7. Conclusion: The Importance of Properly Executing Divorce by Agreement

In summary, divorce by agreement is a legally sound, efficient, and respectful way for spouses to dissolve their marriage with mutual consent. Governed by the Civil Act and overseen by the Family Court, this type of divorce requires adherence to clear procedures, including court guidance, waiting periods, and proper documentation.

By understanding and following the procedure of divorce by agreement, couples can ensure legal compliance, protect their interests, and minimize conflict during what is often a difficult life transition. Proper handling of property division and child support further safeguards the well-being of all parties involved.

For anyone considering divorce, divorce by agreement provides a constructive, amicable alternative to contentious proceedings, aligning legal clarity with mutual respect.

8. About NYLA – Korean Legal Office 

■ NYLA – Your Trusted Legal Partner in Korea

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• Legal consultation on company establishment, taxation, and immigration;

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In addition to legal advisory, NYLA also represents clients in civil litigation cases related to business, labor, marriage, family, and inheritance to ensure their rights and interests are fully protected.

■ Contact NYLA

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