The Unfaithful Husband Divorce Claim Was Dismissed, But Why Was the Estate Split 50-50?
First published 2026-05-30 / Last reviewed 2026-05-30 This article is general legal information based on the above YouTube commentary by the Family and Inheritance Team of Jonjae Law Firm.
A divorce case involved a couple who had been married for 40 years. The husband had cohabited with another woman for over a decade and even fathered a child outside the marriage. The court dismissed the husband divorce petition and awarded 30 million won in consolation money. But the court split the marital estate 50-50 and included the husband retirement pension of about 290 million won in the divisible pool. In the same case, one side said you bear the fault while the other said take home half. This article reviews the Suwon Family Court and Suwon High Court decisions (2019 Deuhap 9931; 2020 Reuhap 11470), examining the relationship between fault-based doctrine and contribution-based division, the valuation date for property division, and the limits of agreements drafted by the spouses.
Facts: 40 Years of Marriage and More Than a Decade of Infidelity
The couple married in 1974 and shared nearly 40 years of married life. The husband earned income as a teacher; the wife handled household and child-rearing duties. When it surfaced that the husband had cohabited with another woman for more than a decade and had a child outside the marriage, the marriage effectively collapsed around November 2013.
Separation followed, during which the spouses drafted a property-division agreement. But because the uncontested divorce that the agreement assumed did not materialize, the effect of the agreement became disputed, and both sides ultimately filed for divorce in court.
Why Only One Divorce Petition Was Granted
The court viewed the husband infidelity and desertion as the principal cause of the marital breakdown. It granted the wife petition and dismissed the husband petition. This is the fault-based doctrine in Korean law.
Fault-based doctrine means that the spouse principally responsible for the marital breakdown cannot petition for divorce on grounds of that breakdown they themselves caused. There are exceptions, however, such as cases where the other spouse refuses divorce for retaliatory reasons rather than genuine desire to remain married. In this case, no such exception was recognized.
The husband argued the wife had long ago forgiven him and that the consolation-money statute of limitations had run, but the court did not accept these arguments, recognizing the infidelity was ongoing.
What 30 Million Won in Consolation Money Means
Consolation money of 30 million won is damages for mental injury caused by the wrongful conduct. It is legally distinct from property division.
In the consultation room, clients in infidelity cases often arrive with the firm belief that not a single won should go to this person. But the court squares responsibility for the wrongful act through consolation money and evaluates property through a separate yardstick called contribution. Treating the two as the same yardstick misaligns case strategy.
Why Property Division Was 50-50
The issue can be organized as follows.
- First instance: Considering the parties past agreement during separation, the court allocated 70% to the wife and 30% to the husband.
- Appeal: Focusing on the long marriage of about 34 years, the appellate court applied the principle that, with the fault for breakdown already squared through consolation money, property division must treat the husband income contribution and the wife household and child-rearing contribution equally — landing on 50-50.
I see the meaning of this ruling in two strands. First, the principle of squaring fault grounds through consolation money and separating property division to a contribution analysis was applied as is. Second, in a long marriage, the contribution of the spouse who devoted herself to household and child-rearing was not treated as merely supplementary but as equal.
In long marriages, the contribution of the spouse who focuses on household and child-rearing tends to be evaluated as having equal weight. This case is one where that trend surfaced in the actual judgment.
Why the Inter-Spousal Property-Division Agreement Was Ineffective
The spouses drafted a property-division agreement during separation. The first instance gave it some weight and ruled 70-30, but the appeal re-examined the agreement validity itself.
The court clearly held that an agreement premised on uncontested divorce loses effect if that uncontested divorce does not occur. When uncontested divorce fails and the case proceeds to judicial divorce, the agreement becomes legally ineffective, and property division returns to court determination.
This is one of the points most commonly misunderstood by people who draft agreements during separation. Contrary to the belief that this is my share and this is your share so we are done, if the premise of uncontested divorce is not satisfied, the agreement may not be alive.
How the Retirement Pension Entered the Division Pool
Another factor that materially altered the final division was the husband retirement pension.
- First instance: Roughly 290 million won in retirement pension received by the husband shortly after separation was excluded from division.
- Appeal: The same retirement pension was treated as joint property formed through the long marriage and included in division.
As a result, the total net assets rose to about 1.07 billion won. Dividing this 50-50, the wife current holdings exceeded the husband share, so the court ordered the plaintiff (wife) to pay the defendant (husband) about 53 million won in property-division payment.
The Issues in One Table
| Issue | First Instance | Appeal |
|---|---|---|
| Husband divorce petition | Dismissed | Dismissed |
| Wife divorce petition | Granted | Granted |
| Consolation money | 30 million won granted | Same |
| Division ratio | Wife 70 : Husband 30 | Wife 50 : Husband 50 |
| Retirement pension (about 290M) | Excluded from division | Included in division |
| Inter-spousal agreement | Partially reflected | Invalid for failure of uncontested-divorce premise |
| Final result | (Divided per current holdings) | Wife pays Husband about 53 million won |
Implications of This Judgment
In our consultation room, the implications of cases like this come down to three points.
- Fault and property division are evaluated on different yardsticks: A faulting spouse contribution to asset formation is still protected. Wrongful conduct such as infidelity is handled through consolation money; property is divided through contribution.
- In long marriages, household and child-rearing contributions tend to be evaluated equally: In a 30 to 40 year marriage, the household-and-childcare spouse contribution is not seen as merely supplementary.
- Inter-spousal agreements must be read together with their premises: An agreement premised on uncontested divorce can lose effect if that divorce does not occur. If you have a separation agreement, examine what conditions it rests upon.
Frequently Asked Questions
Q. Can an unfaithful spouse still receive a property division? A. Yes. Infidelity is handled through consolation money; property division is conducted through a separate contribution analysis. Even with infidelity, if there was contribution to forming or maintaining assets, that contribution is reflected in the property division.
Q. Is an inter-spousal agreement drafted during separation effective as is? A. Not unconditionally. You must examine the premises of the agreement. An agreement premised on uncontested divorce can lose effect if that uncontested divorce fails, and division ultimately returns to court determination.
Q. Is a retirement pension always subject to division? A. As in this judgment, portions formed during marriage tend to be considered divisible. But the receipt date, the relation to separation date, and the contribution share during marriage must also be examined. In this case, the first instance and the appeal reached different conclusions on this item.
How to Apply It to Your Case
If you face a divorce case where infidelity is in dispute, the safer sequence is as follows. First, separately organize where fault grounds and the resulting consolation-money assessment go. Second, organize each property item by formation date and your form of contribution to prepare for division-pool and ratio analysis. Third, if you have agreements, side letters, or property statements drafted during separation, examine what premises they rest on.
To learn what kind of agreement is safe to draft during separation and how a retirement pension may be evaluated in your case, you can start a chat consultation now.
Jonjae Law Firm Family and Inheritance Team Last reviewed 2026-05-30
This article is general legal information and does not substitute for legal advice on individual matters. Outcomes vary by facts; for specific disputes, please seek a separate consultation.
