Chinese couple divorce in Korea jurisdiction custody battle decided by stability

Can a foreign couple file for divorce in a Korean court? Who will take custody? These are not abstract questions but practical ones we hear with growing frequency in our consultation room as more foreign families settle in Korea. The case introduced today involves a couple, both Chinese nationals, who fought over divorce and custody in a Korean court. The issues look simple on the surface, but the case is a useful textbook because the application of private international law, the determination of governing law, and the criteria for custody all appear in a single matter. I often cite this case for that reason.

Plaintiff A and Defendant D were both Chinese nationals and a legally married couple who completed their marriage registration in China in April 2012. They entered Korea around 2018, lived apart for several years, and grew indifferent to each other. Conflict between the plaintiff and the defendant's mother compounded the situation, and the marriage reached an irreparable breakdown. When such circumstances accumulate, the relationship typically settles into de facto separation, and over time one party often decides to file for divorce. Even where both spouses hold the same nationality, when their residence and daily environment are anchored in Korea, the case proceeds as a formal trial before a Korean court rather than a simple application of home-country law.

If both spouses are foreign nationals, is the Korean court powerless? Article 2(1) of the Act on Private International Law sets jurisdiction based on substantial connection. Here, both spouses had long resided in Korea and their children were growing up here, so the Korean court was found to have jurisdiction. The center of gravity of daily life weighs more than nationality. Objective facts such as foreign-resident registration, length of stay, the children's school records, and tax filings typically reinforce the substantial-connection analysis.

The Act on Private International Law designates the law of the spouses' common habitual residence as the governing law for divorce. Because both spouses had their habitual residence in Korea, Korean Civil Code applied. The court found the case fell under Article 840, Item 6 (other serious cause that makes it difficult to continue the marriage) and granted the plaintiff's divorce claim. Cases involving foreign couples residing in Korea tend strongly toward applying Korean Civil Code. That said, for some parts of property division, particularly the valuation and enforcement of assets in the home country, home-country law is sometimes reviewed procedurally alongside.

The court designated the defendant (the mother) as the holder of parental authority and the custodial parent. The core reasoning was simple.

Specifically, the following circumstances were considered together.

• The ages of the children
• Who had been the primary caregiver in the past
• Whether the defendant is currently raising the children stably with the help of her parents (the children's maternal grandparents)
• Continuity in school, language, and emotional environment
• The available caregiving time and supporting personnel of each parent

The court concluded that maintaining the current stable caregiving environment best served the children's welfare. In the consultation room, many clients argue that they could raise the child better because they earn more, but the court typically weighs who is raising the child well now more heavily than who could raise the child better. The status quo of caregiving generally carries that much weight.

Visitation rights were granted to the plaintiff. A relatively regular schedule was permitted — one overnight visit on the first and third Saturdays of each month from 10:00 a.m. through 10:00 a.m. the following Sunday — and the custodial parent was placed under a duty to cooperate so that visitation could proceed smoothly. In international cases, additional conditions related to travel to and stay in the home country are often added. Items such as whether home-country relatives may accompany visits, the obligation to retain a travel-consent letter, and who manages the child's passport are often arranged together.

• Duty to retain a travel-consent letter for the child
• Prior notice before visiting the home country
• Notice upon changes in permanent residency or visa status
• Conditions for visitation with home-country relatives
• Currency and exchange-rate standards for remitting child support

• Even where both parties are foreign nationals, a Korean court has jurisdiction where there is substantial connection.
• The governing law is determined under the Act on Private International Law; for foreign couples residing in Korea, Korean Civil Code is often applied.
• Custody determinations turn on the child's current stability rather than on nationality or income.
• The non-custodial parent's visitation rights are not lightly restricted; in international cases, special provisions such as home-country visits are often added.
• For property division, assets in the home country are typically harder to trace, value, and enforce against.

• Will a future return to the home country affect custody?
• Once the child reaches a certain age, will the child's own preferences be reflected?
• Can child support be paid in the home-country currency?
• If home-country family members assist in caregiving, does that affect the custodial parent's fitness?
• Will a child residing in the home country also be considered as part of the caregiving environment?

These circumstances are typically used as evidence to reinforce the stability and predictability of the caregiving environment.

• Share the expiry date and renewal schedule of residency status (visa) in advance
• Organize the children's school enrollment and health-insurance status
• Prepare a list and valuation materials of home-country assets in advance
• Maintain consistency in the interpreter (the same interpreter handling multiple hearings)

In cases involving foreign couples, I particularly emphasize the consistency of the interpreter. The nuance of a single word can subtly influence the assessment of the caregiving environment.

Q. If a foreign national divorces in Korea, is the case governed only by Korean law?

A. Where habitual residence is in Korea, Korean Civil Code is generally the governing law. That said, additional review of the home-country law may be required for parts of property division and for matters of parental authority.

Q. In a custody dispute, is occupation and income the most important factor?

A. No. The child's current caregiving environment and welfare are generally the foremost criteria. A stable daily routine, school setting, and the presence of caregiving support are very important.

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International divorce and custody cases sound straightforward when summarized as which country's law applies, but in actual litigation, factual matters such as length of residence, the center of daily life, and the children's environment determine the outcome. I always begin a consultation by asking how long the couple has spent in Korea, because the answer shapes the skeleton of the case.

Divorce cases involving foreign couples often intersect not only with family law but also with immigration and nationality procedures.

• The renewal schedule of the foreign-resident registration card
• The possibility of changing the F-6 marriage-immigrant visa
• The qualification and residence requirements for permanent residency (F-5)
• The party who manages the child's nationality and passport

When the visa is about to expire just before a divorce decision, or when the child's passport is held by one party, these situations often introduce significant variables into the proceedings.

The outcome of an international case is typically determined less by nationality than by the weight of the daily life spent in Korea. Because delays in decisions about departure, residency, or visitation directly affect the custody assessment, the earlier the consultation, the better.

In cases involving foreign couples, the consistency of the interpreter and the accuracy of translated documents typically determine the credibility of the evidence. Whether home-country family-relations certificates, school records, and medical records have been notarized in English or Chinese translation, and the timing of their submission, can influence the assessment of the caregiving environment.

Real estate and bank deposits located in the home country are typically more difficult to trace, value, and enforce against. To dispute home-country assets as part of property division, registry and tax records under the home-country law and supplementary opinions from local attorneys and tax accountants are typically used as reinforcing materials.

• Home-country relatives assisting in caregiving is generally evaluated as contributing to the stability of the caregiving environment. However, if there are circumstances suggesting that those relatives might suddenly take the child back to the home country, this can conversely be evaluated as unpredictability, and conditions on visitation and passport management are typically arranged more meticulously.

Byline · Author and reviewer: Attorney Yoon Ji-sang · Reviewed on: 2026-05-30

This article is provided as general legal information and does not guarantee the outcome of any individual case. Because conclusions can vary depending on the specific facts, please consult an attorney directly if you need legal advice tailored to your individual circumstances.