Korea (South): Revisions to the Family Law in 1991; effects on property and child custody rights of women in divorce

An article which appeared in the Boston College Third World Law Journal provides a detailed analysis of the changes to the Korean Family Law brought about by the January 1991 amendments. With respect to property rights of women on divorce, under the pre-1991 law, a woman had no rights to marital assets on divorce. Under the revisions, women were entitled to jointly-held property in proportion to their contributions to the acquisition of that property. A translation of the relevant provision (article 839(2)) is cited in the article:

Claim for Division of Property

(1) One of [the] parties who has been divorced by agreement, may claim a division of property against the [other] party.

(2) If no agreement is made for a division of property as referred to in Paragraph (1), or if it is impossible to reach an agreement, the Family Court shall, upon request of the parties, determine the amount and method of division taking into account the amount of property realized by cooperation of both parties and other circumstances.

(3) The claim for division of property as referred to in Paragraph (1) shall be extinguished at the expiration of two years from the day of divorce (1994, 152).

The article notes that prior to the amendments, a woman who petitioned for divorce, even in cases of abuse, "automatically lost custody of her children unless the man waived this right through a special custody agreement" (ibid.). The revised provision (article 837) establishes that the decision is to be made by agreement of the couple or where necessary by the Family Court:

Divorce and Responsibility for Fostering and Education of their Children

(1) The parties shall determine by agreement matters concerning fostering and education of their children.

(2) In case an agreement on the matters concerning fostering and education as set forth in Paragraph (1) has not been made or able to make, the Family Court may, upon the application filed by the parties, decide the matters necessary for such fostering and education by taking into consideration of the age of their child or children, property status of the father and mother and another circumstances thereof, and the Family Court may change at any time such matters or may take any other proper disposition.

(3) Except for matters relating to fostering and education, the provisions of Paragraph (2) shall not effect any change of the right and duty of the parents.

The article cites a survey conducted in 1991 that indicated that awareness of the January amendments to the Family Law was very low among Korean women (ibid., 159).

Korea's fourth periodic report to the Committee for the Elimination of all Forms of Discrimination Against Women (CEDAW) describes the amendments to the Family Law that took effect in January 1991:

24. The newly amended Family Law represents a radical departure from its predecessor as it places men and women on an almost equal status and provides a legal framework for evolving a family system and tradition based on a truly gender-equal relationship between marital partners (1998, 14).

However, in its concluding comments on the fourth periodic report, the CEDAW committee expressed concern "that the reports contain insufficient information on the actual impact of laws and policies on women's lives" (8 July 1998). A "Shadow Report" to the fourth periodic report, prepared by the Korean Women's Associations United (KWAU), a coalition of Korean women's groups, did not contain any commentary on the Family Law (n.d.).

In a telephone interview with the Research Directorate, a Korean Law Professor, who is currently the Visiting Professor in the Global Law Faculty of New York University Law School, stated the 1991 revisions had not had as much impact as advocates had hoped and that problems were particularly being seen among older couples (11 Mar. 1999). This is corroborated in a 28 January 1999 article from the Korean Herald which contains reports of rulings in which abused older women saw their petitions for divorce denied on the basis that the wedding vows had been made at a time when patriarchal values were stronger. According to another report, the Korean government was undertaking a review to "root out the remaining discriminatory elements of the Family Law" (M2 Newswire 8 July 1998). The need to revisit the Family Law was acknowledged by President Kim in September 1998 as he presented the award for "Woman of the Year" (Korea Herald 29 Sept. 1998).

Further details concerning the effects of the revisions to the Family Law, including information on child custody and property rights, could not be found among the sources consulted by the Research Directorate.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please see below the list of additional sources consulted in researching this Response.

References

Boston College Third World Law Journal. 1994. Vol. 14. Rosa Kim. "The Legacy of Institutionalized Gender Inequality in South Korea: The Family Law." pp. 145-162.

Country Reports on Human Rights Practices for 1998. 1999. Washington, DC: US Department of State. [Internet] [Accessed 11 Mar. 1999]

The Korea Herald. 28 January 1999. Byun Eun-mi. "More Elderly Women Demanding Divorces." (NEXIS)

_____. 29 September 1998. "Chung Kwang-mo Wins KNCW Woman of the Year Award." (NEXIS)

Korean Women's Associations United (KWAU). n.d. "Shadow Report." [Internet] [Accessed 12 Mar. 1999]

M2 Presswire. 8 July 1998. "UN Committee Told of Adverse Effects of Economic Crisis on Situation of Women in Republic of Korea." (NEXIS)

United Nations Committee on the Elimination of all Forms of Discrimination against Women (CEDAW) 8 July 1998. (CEDAW/C/II/L.1/Add.8) Draft Report.

_____. 30 March 1998. (CEDAW/C/KOR/4). Consideration of reports submitted by States parties under Article 18 of the Convention on the Elimination of All Forms of Discrimination against Women. Fourth periodic reports of States parties. Republic of Korea.

Visiting Professor, Faculty of Global Law, New York University Law School. 11 March 1999. Telephone interview.

Additional Sources Consulted

Resource Centre Country File on Korea, 1995-1999.

Women's Information Network News [Lexington, MA]. 1993-1999.

Electronic Sources : IRB Databases, REFWORLD, LEXIS/NEXIS, WNC, CISNET, Internet.

Unsuccessful attempts to contact three oral sources.