Washington International Law Journal


Faye Y. Park


As South Koreans divorce closer to the retirement age, the issue of whether retirement allowance should be divided upon divorce has become more prevalent. The applicable law in the division of the retirement allowance in a divorce is Article 839-2 of the Civil Code. This article provides that property realized through the cooperation of both spouses shall be divided in divorce by agreement. The Korean courts have historically undervalued the contribution of spouses who provide housework by giving them less property in the division of acquired marital property. Retirement allowances pose problems because a spouse can contribute in acquiring them solely by providing housework, which is difficult to quantify. Furthermore, retirement allowances do not become realized property until the retired spouse receives the retirement allowance; thus the unemployed spouse may not receive a fair amount of property if they divorce before retirement. The Ministry of Justice proposed an amendment to Article 839-2 to include the language that property realized by cooperation shall be divided equally. Once the amendment comes into effect later this year, courts should divide the received retirement allowance equally, regardless of whether one or both parties were economic contributors. Courts, however, should retain the discretion to determine the amount of property each spouse receives to reflect different circumstances, such as the employed spouse’s unreceived retirement allowances. Additional amendments to include property that will be realized in the near future are recommended.

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