Mutual fault eliminates damages from third party adultery 2024 Korean Supreme Court turn

In divorce and damages cases, the damages claim against a third party in adultery is typically the most emotionally loaded. But on July 15, 2024, the Korean Supreme Court issued a decision to the effect that, if damages between the spouses are settled at zero, damages against the third party cannot be recognized either. This created a major shock in practice. Today, we organize the logic of this precedent and the trap that anyone preparing a divorce or related suit must know going forward.

A typical scenario is as follows.

• The husband severely wrongs the marital life through gambling addiction, verbal abuse, or violence
• The wife then has an affair
• The husband files for divorce, claiming damages from the wife and damages from the third party

In such cases, the court typically finds that both parties bear significant responsibility and frequently does not recognize damages.

In the past, even if marital damages were settled at zero, damages against the third party were often still recognized separately. On the logic that the third party in any event bore some responsibility for the breakdown of the household, damages of roughly 30 to 50 million won were typically set. There was criticism that this fell short of inflation, but the claim itself was viable.

The Supreme Court framed it as follows.

The surface logic is simple.

• The principal (spouse) liability for damages must be recognized
• Only then can the accomplice (third party) liability for damages be recognized
• If the principal liability is zero, the accomplice liability is also zero

The Supreme Court's reasoning resembles the principal and accomplice structure in criminal law. It is rare that a principal is not punished while only the accomplice is. Translating this logic to family and civil damages, the result of the spouse not being held responsible while only the third party is held responsible is logically awkward.

Doctrinal coherence is clear, but so is the distance from public sentiment.

• The responsibility of someone who had an affair with another knowing they had a family becomes zero
• The emotional demand to hold the third party responsible is, in the end, frustrated
• The expression mutual fault itself is sometimes misunderstood as acquittal or immunity

This is an area where further social consensus and legislative discussion are needed.

After this precedent, anyone preparing a divorce or related suit must check the following.

• Pre-analyzing whether there is a risk of being evaluated under mutual fault
• Organizing objective materials on your own fault (verbal abuse, violence, gambling, spending, etc.)
• Collecting evidence of the other side's fault (affair, neglect of household, etc.)
• Where there is a risk of damages going to zero, reviewing a strategy that shifts weight onto property division and child support

In particular, where your own fault is large, rather than relying solely on a separate claim against the third party, the overall structure of the case must be redesigned.

In consultations, many declare that since the spouse had an affair, damages are guaranteed. But actual judgments comprehensively evaluate the following circumstances.

• The order between the time of the breakdown of the marriage and the time of the affair
• The degree of your own fault
• The strength of objective evidence of the affair
• The impact on the whole family, including children and property

More than the fact of the affair itself, who bore greater responsibility for the breakdown of the household from what point in time is the core.

A zero in damages does not block every claim.

• Property division: typically calculated separately on the basis of contribution. Cases where an affair directly affects the division ratio are limited
• Child support: calculated based on each parent's income and assets. The affair itself does not greatly affect child support calculation
• Parental rights and custody: based on the child's welfare. An affair does not automatically translate into a parent's unfitness

• Objective materials proving the timing and duration of the affair
• The starting point of your own fault
• Cohabitation or separation situation at the time of the marriage breakdown
• Changes in mutual spending and assets

In consultations, I typically recommend reordering the case chronologically. Where the center of gravity of responsibility lies typically decides the outcome.

• Where your own fault is large: reduce the weight of the damages claim and focus on property division and child support
• Where the other's fault is large: keep the conventional strategy combining damages and the third party claim
• Where both bear significant fault: review mediation or settlement to shorten the procedure

Q. If I am also at fault, is damages from the third party always zero?

A. Only where your fault is evaluated as having contributed to the marital breakdown on a comparable level, such that damages are zero, do damages from the third party also become zero. The outcome depends on the facts.

Q. Then has it become pointless to collect evidence of the affair?

A. No. Such evidence remains important not only for damages but also for the judgment of parental rights and custody, and the evaluation of contribution in property division.

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The 2024 Supreme Court precedent has made a major change in the definition of these cases. If your own fault is large, even the safety net of third-party damages can disappear. Anyone preparing such a suit should, before being swept by emotion, first examine whether their case is at risk of being evaluated under mutual fault. The entire structure of the case may need to be redesigned.

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This precedent is a clean conclusion in terms of doctrinal coherence, but it does not directly reflect the sense of social responsibility for an affair. Some argue for legislatively protecting the social values of family protection and fidelity separately. But legislation needs more time, and during that time cases proceed under the current precedent. This must be assumed.

In consultations, I most carefully look at the proof of one's own fault. Closing the distance between the degree of wrong you admit, the degree the other party claims, and the truth between them, using objective materials, is typically where the case begins. By organizing diaries, texts, account transactions, treatment records, and other materials step by step, one can reduce the risk of being evaluated under mutual fault.

Cases where the affair itself directly applies to the property-division ratio are typically limited, but asset outflows linked to the affair (transfers or gifts to the other person) typically work as a minus in the contribution evaluation for division. This is a claim that remains alive even where damages are zero.

• Circumstances exposing children to the affair typically affect the evaluation of the rearing environment
• Acts that adversely affect the child during visitation are typically reflected in the visitation conditions
• Apart from the affair, the stability of a parent who has continuously maintained the child's daily schedule is typically weighed more heavily

• Before drafting the complaint: organize and predict materials on your fault
• During pleadings: chronological organization, witness-examination strategy
• During mediation: review settlement terms factoring in the damages-zero risk
• After judgment: pursue enforcement and asset search in parallel

In affair cases, damages are no longer a safety net. Objectifying your own fault and redesigning the case as a whole typically make the largest difference.

Before consultation, I typically ask clients to bring the following materials. A chronological organization of family schedules and history of disputes, income and expenditure materials for both parties, the child's school and treatment schedule, day-by-day notes on suspected affair. With these materials organized, the risk zones for damages assessment can typically be gauged quickly at the first consultation.

When materials are well organized at the first consultation, the overall case time is typically shortened.

Byline Author and reviewer: attorney Roh Jongeon. Reviewed: 2026-05-30

This article is a column intended to provide general information and does not guarantee any specific case outcome. Conclusions may differ depending on the concrete facts, so if you need legal advice for your circumstances, please consult an attorney.