A marriage filing takes ten minutes. Why is a divorce so complicated? One of the most common questions in consultations. This article covers the difference between consensual and judicial divorce, the six grounds for judicial divorce, and the recent line on whether the faulty spouse — the one whose conduct caused the breakdown — can file. The Chey Tae-won and Noh So-young case has sharply increased these questions.
Divorce in the statistics: a near reality
In 2023, Korean marriages totaled around 194,000 and divorces around 92,000. With informal-marriage dissolutions not even captured in the statistics, roughly one couple in two now experiences divorce.
As divorce-related TV programs have proliferated, social views on divorce have shifted. With shows like We Got Divorced, Between Marriage and Divorce, and Divorce Reflection Camp, divorce is no longer something to hide but something framed as an active decision.
Yet statistics and attitudes aside, the divorce process itself is far more complicated than the marriage registration. Understanding why changes the way the case is approached.
Consensual and judicial divorce: different textures
Divorce splits broadly into consensual and judicial. The two procedures can be summarized in this table.
| Item | Consensual divorce | Judicial divorce |
|---|---|---|
| Core requirement | Mutual agreement of both spouses | A ground under Civil Act Article 840 plus a court judgment |
| Forum | Family court (intent confirmed after a cooling-off period) | Family court trial chamber |
| Duration | Typically 1 to 3 months (including cooling-off) | First instance 6 to 18 months, plus appeal |
| Alimony and property division | Set by agreement (separate suit if not reached) | Can be contested inside the case |
| Custody and visitation | Set by agreement | Can be contested inside the case |
Consensual divorce can resolve quickly if both spouses agree on every point. If even one of alimony, property division, custody, or visitation cannot be agreed, the matter goes to judicial divorce, and from then on the burden of time and cost grows in earnest.
The six grounds for judicial divorce
Civil Act Article 840 limits the grounds for judicial divorce to six.
- Item 1: Where the spouse has committed an act of unchastity
- Item 2: Where the spouse has maliciously deserted the other
- Item 3: Where the spouse or the spouse lineal ascendant has inflicted exceedingly unfair treatment
- Item 4: Where the lineal ascendant has been subjected to exceedingly unfair treatment by the spouse
- Item 5: Where the spouse has been unaccounted for, dead or alive, for three years or more
- Item 6: Where any other serious cause makes it difficult to continue the marriage
The most frequent grounds in practice are item 1 (unchastity) and item 6 (other serious cause). Item 6 is read broadly to cover long-term separation, financial irresponsibility, gambling and addiction, domestic violence, and the like. Depending on the facts and evidence, the choice of ground meaningfully affects the alimony amount and the property-division negotiation.
Can the faulty spouse file?
One of the questions I most often hear is whether I, the one at fault, can file for divorce — the so-called faulty-spouse divorce question.
The Supreme Court long-standing position can be summarized as follows.
- Principle: the spouse mainly responsible for the breakdown (the faulty spouse) cannot file for divorce.
- Exceptions: a faulty-spouse petition can be accepted when it is objectively clear that the other spouse no longer has intent to continue the marriage, or when refusing divorce would not be in the welfare of the children.
The exception scope is evaluated case by case. Long separation (typically five years or more) with no realistic prospect of reconciliation, explicit signs that the other spouse agreed to divorce, and grown children where custody is no longer a major issue all weigh in favor of the exception.
The exception scope is evaluated case by case. Length of separation, the other spouse intent, and the children welfare are weighed in the round.
What the Chey Tae-won / Noh So-young case shows
The appellate judgment in the Chey Tae-won / Noh So-young case redrew the line on faulty-spouse divorce. The first-instance court had excluded certain assets such as SK shares from the divisible pool as separate property, but the appellate court included them and recognized property division of around 1.3 trillion won and alimony of 2 billion won.
From the faulty-spouse divorce angle, the appellate court considered, in the round, that any realistic prospect of reconciliation had vanished, that the other spouse did not actively oppose divorce itself, and that the substantive contribution to forming the assets could be recognized. The court allowed the divorce while reflecting the weight of fault through the alimony and the division ratio.
The case has since been remanded by the Supreme Court back to the appellate stage, and the conclusion on remand could depend on separate variables. Given the high public interest, the next stages are worth watching together.
When there are children: the additional axis
When there are children, the divorce process splits into two axes.
- Between the spouses: alimony, property division, factual settlement
- About the children: parental authority and custody, child support, visitation
On matters concerning the children, the court most prioritized standard is the welfare of the children. Independently of which spouse is more at fault, who can more stably provide the daily caregiving environment becomes the central criterion for parental authority and custody.
When I handle divorce cases involving children, I advise clients not to treat the fault contest and the children matters as equally weighted. The sharper the fault contest, the higher the risk that decisions about the children drift in an unreasonable direction — and the children are the ones who bear it.
Frequently asked questions
Q. If consensual divorce fails, must we always go to trial? A. Not necessarily. Many cases settle in mediation even when agreement was hard at first. Even after trial begins, a meaningful proportion of cases settle through mid-trial mediation. Beyond a direct fight from the start, it is efficient to consider room for negotiation.
Q. If we have lived apart for a long time, is divorce automatic? A. No. Long separation must be combined with the realistic impossibility of reconciliation to be assessed under item 6 or the faulty-spouse exception. Separation alone is not a ground for divorce, but combined with other circumstances it can be a powerful factor.
Q. I committed unchastity and my spouse refuses divorce — can divorce still happen? A. Under the standard principle, a faulty-spouse petition is not accepted. But if the exception factors — length of separation, the other spouse actual intent, the children situation — are met, it can be accepted. Because the prospects vary substantially case by case, a separate consultation is needed.
Wrap-up
Divorce litigation is complicated because the marital facts are abstract while the issues that must be settled — alimony, property division, child rearing — are highly concrete. Judicial divorce grounds are limited to the six in Civil Act Article 840, and faulty-spouse petitions are typically refused except where the exception (length of separation, the other spouse intent, etc.) is met. If you map out which ground applies and how fault assessment cuts, the subsequent picture for alimony and property-division negotiation gets much clearer.
Written by: Jonjae Law Firm attorney Yoon Ji-sang · Reviewed by: attorney Roh Jong-eon · Final review 2026-05-30
This article is general legal information and does not guarantee outcomes in individual cases. Divorce-ground evaluation and faulty-spouse exception eligibility depend heavily on the facts, so for a specific case please consult an attorney separately.
