Adultery Threshold in Korean Divorce Case Law Review

The question posed by the Choi Jung-won appeal

In the divorce appeal between actor Choi Jung-won, formerly of the group UN, and the alleged paramour, the Seoul High Court ruled that "the relationship between the two cannot be seen as more than mere friendship, and does not constitute adultery as grounds for divorce." A case in which a breach of the duty of marital fidelity was recognized at first instance was reversed on appeal. As the appeals court is the final stage of fact-finding, and the Supreme Court tends not to revisit fact-finding because it is a court of legal review, the appellate conclusion is usually likely to stand. As a divorce and consortium attorney, the question I am asked most often is, "How far is adultery recognized?" Starting from this appellate decision, this article organizes our courts' usual thresholds for recognition by case type.

The clearest territory: sexual relations and intimate physical contact

The area where adultery is clearly recognized in divorce and consortium cases is limited.

Cases where one had sexual relations at a motel or hotel with a person other than the spouse
Cases where intimate physical contact with clearly sexual meaning (kissing, body contact) is proven

If this much is proven, adultery is usually recognized. The challenge lies in the middle zone, where suspicion is strong but decisive evidence is lacking. Most of the cases we encounter in consultations fall in this middle zone.

Case 1: Is visiting an entertainment venue adultery?

Case law tends not to view a mere visit to an entertainment venue as adultery.

A single visit with no additional circumstances: adultery not recognized
Frequent visits with circumstantial evidence: adultery may be recognized
Large amounts spent at entertainment venues, by themselves: adultery not recognized (Seoul Central District Court 2024 Ga-dan 532818, etc.)

Even if large entertainment expenses are proven, without additional evidence such as romantic emotional exchange or sexual physical contact with an employee, recognition is usually difficult. Under the principle of evidentiary adjudication, the party asserting the wrongful act bears the burden of proof. That the burden lies with the claimant is one of the most often misunderstood points, contrary to lay intuition.

Case 2: Securing evidence — private investigators and wiretaps/GPS trackers

The most commonly considered methods of securing evidence when adultery is suspected:

Hiring a private investigator: high labor costs; even after one or two months of surveillance, decisive evidence often fails to emerge
Installing wiretapping devices or GPS trackers in vehicles: if discovered, the risk usually exceeds a simple fine and may lead to suspended imprisonment or worse

Securing evidence is the heart of proving adultery, but the act itself must not become a target of criminal punishment. Installing GPS trackers or wiretaps is usually a very risky choice.

Evidence obtained this way is often difficult to use in the main case, and the person collecting it may become a criminal suspect. At the suspicion stage, gathering material within the bounds of lawful evidence is usually the most efficient strategy in the end.

Case 3: "Ambiguous" circumstances unlikely to be recognized as adultery

Case law tends not to recognize the following circumstances, by themselves, as adultery:

Use of affectionate nicknames such as "honey"
Going hiking alone together through a club activity
Text expressions like "I miss you," "you're pretty"
Even with photos of entering a motel together, when it is proven that they merely drank

These are clearly suspicious, but case law usually requires stricter additional evidence. Entering a motel is, on its face, a strong circumstance, but if the other side actively proves "we only drank together," the conclusion may change. Therefore, rather than starting litigation on a single piece of circumstantial evidence, it is usually necessary to bundle multiple circumstances in chronological order.

Case 4: Is receiving a written statement enough?

There are cases where, after pressing the spouse, one receives a written apology saying "I will not let this happen again." But case law tends not to recognize adultery from a mere apology, because it can be interpreted as "an apology for inappropriate conduct," which is hard to view as a confession of adultery. To leave a meaningful piece of evidence in a written statement, the following are usually needed:

The date of the act
The place
Specific conduct
A clear acknowledgment of and apology for the facts

The circumstances at the time of writing (intensity of pressure, presence of coercion) may later be disputed. So beyond the contents of the statement, the lawfulness of the writing process is usually also considered. It is usually necessary to record the questioning on video, and to be careful not to let the questioning escalate to criminal issues (intimidation, confinement).

The most common mistake when suspicion arises

When adultery is suspected, it is easy to confront the other party immediately, but this usually has the opposite effect. The other party then acts more discreetly, making evidence collection much harder. When I meet a client at the suspicion stage, rather than venting anger, I recommend first having a consultation with an attorney to check the direction of evidence collection and lawful limits. Emotional reactions usually have a tendency to shift the case's conclusion to one's own disadvantage.

Examples of lawful evidence used in practice

Messages, emails, and call records you personally hold
Transaction records on cards or accounts in your name
Photos you took yourself in public places or shared living space
Recordings of conversations in which you were a participant
Hotel, restaurant, and transportation flows visible from credit card statements

These materials have few legality concerns and usually play a large role in mapping out the case. By contrast, materials obtained by accessing the other party's phone or email without consent may violate the Protection of Communications Secrets Act, so caution is usually needed.

Additional checks in consortium damages litigation

Whether the paramour's personal details (name, address, contact) can be confirmed
Whether the paramour was aware the other was married
The usual range of consolation money claims
The allocation of proof in the claims and grounds

These checks, done in advance, can reduce the burden of sudden changes to the claim during proceedings.

Frequently asked questions

Q. Can adultery be recognized from KakaoTalk chat screenshots alone? A. It tends to be recognized only when content, frequency, time, and circumstances of meetings are combined. Friendly nicknames or sentimental expressions alone are usually not enough.

Q. If there are photos of entering a motel, is adultery decisively recognized? A. Entering a motel is often a strong circumstance for recognition, but in some cases, when other circumstances are proven (such as "we only drank"), adultery is not recognized.

Q. What is the statute of limitations from the time of the wrongful act? A. Consortium damages claims tend to be subject to a three-year period from knowing the damage and the wrongdoer, and a ten-year period from the act. For timing, it is safe to consult an attorney early.

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Closing

Whether adultery is recognized ultimately depends on the weight of evidence. Acting emotionally at the suspicion stage causes evidence to disappear; collecting evidence unlawfully can lead to criminal punishment. Deciding what evidence to gather and how, within these bounds, is usually the starting point of an attorney consultation.