International Divorce Procedures | Which Country's Law Applies?

Here's a straightforward breakdown of jurisdiction, governing law, the criteria for applying Korean law, and what comes next.

This article covers the very first step in an international divorce: establishing which country's court handles the case, and under which country's law.

1. What Is an International Divorce? Two Key Differences from a Domestic Divorce

An international divorce refers to a divorce between spouses of different nationalities, or spouses of the same nationality living in different countries. What sets it apart from a divorce between Korean nationals is that two things must be established before proceedings can begin:

• Jurisdiction: Which country's court has the authority to hear the case

• Governing law: Which country's law that court will apply as its standard (in plain terms, which country's law governs the case)

Jumping into litigation without clarifying these two points can result in a court declining to hear the case, or a different country's law being applied than expected.

2. Jurisdiction in International Divorce — Which Country's Court Handles the Case?

Whether a Korean court can take on a case is determined by whether the case has a substantial connection to Korea. In most situations, the case can proceed in a Korean court if:

• At least one spouse actually resides in Korea

• The couple primarily lived their married life in Korea

• The other party consents to the jurisdiction of a Korean court

Conversely, if both spouses live abroad and the only connection to Korea is nationality, a Korean court may not be able to handle the case.

Private International Law Act, Article 2 (International Jurisdiction): This provision establishes the principle that Korean courts have international jurisdiction when a party or the subject matter of the dispute has a substantial connection to the Republic of Korea. It applies to family law cases as well.

3. Governing Law in International Divorce — Which Country's Law Applies?

Once jurisdiction is established, the next question is which country's law serves as the standard. This is called the "governing law," and the order of priority is as follows:

① If both spouses share the same nationality → the law of that country
② If they have different nationalities → the law of the country where they jointly reside
③ If neither ① nor ② applies → the law of the country most closely connected to the couple

There are exceptions. If one of the spouses is a Korean national residing in Korea, Korean law applies regardless of the above order — and in practice, this is the most common scenario in international marriage divorce consultations. In rare cases, even a foreign couple of the same nationality may be subject to Korean law if the center of their lives has long been in Korea.

Private International Law Act, Article 66 (Divorce): This provision states that the governing law for divorce follows Article 64 (General Effects of Marriage) by analogy, but that Korean law applies when one spouse is a Korean national with habitual residence in the Republic of Korea.

Private International Law Act, Article 21 (Exception to Governing Law): This exception provision states that if the governing law determined under this Act has only a minor connection to the legal relationship at issue, and another country's law has a clearly closer connection, the law of that other country shall apply.

4. Which Law Applies to My International Divorce? A Case-by-Case Reference Table

If you've found a row that closely matches your situation, you have a general picture of where things stand. If your case falls under "individual assessment required," or if you'd like to understand the exceptions for same-nationality couples, the K-Foreigner Legal Center can give you a precise answer through consultation.

5. International Divorce Procedures and Grounds — If Korean Law Applies

If Korean law applies, the process that follows is the same as a divorce between Korean nationals.

• Divorce by agreement: When both spouses consent to the divorce. The family court requires a reflection period — three months if there are children, one month if there are none. In urgent circumstances such as domestic violence, this period may be shortened or waived.

• Judicial divorce: If no agreement is reached, the matter proceeds to litigation. Before filing suit, mediation must first be requested. Only if mediation fails does the trial formally begin.

• Grounds for divorce: To file for judicial divorce, at least one of the grounds set out in Article 840 of the Civil Act must be present — including infidelity, willful abandonment, serious mistreatment, disappearance for three or more years, or any other grave cause making it impossible to continue the marriage. Even conflicts that appear to stem from cultural differences may qualify as grounds for divorce if they involve elements of control or neglect.

Family Litigation Act, Article 50 (Mandatory Pre-Litigation Mediation): This provision requires that for certain family litigation cases (Class Na, Da) and non-contentious family cases (Class Ma), mediation must be requested with the family court before a lawsuit or adjudication is filed.

Civil Act, Article 840 (Grounds for Judicial Divorce): This provision sets out the grounds on which judicial divorce may be sought: ① infidelity of a spouse; ② willful desertion by a spouse; ③ seriously improper treatment by a spouse or their lineal ascendants; ④ seriously improper treatment of the claimant's lineal ascendants by the other spouse; ⑤ the other spouse's unknown whereabouts for three or more years; ⑥ any other grave cause making continuation of the marriage impossible.

With the K-Foreigner Legal Center by your side, you won't need to worry about where your case stands or what comes next. Proactively guiding you before questions even arise, and identifying potential risks so you're never left uncertain about what to prepare in an unfamiliar legal system — that is what we have been doing for years.

We take responsibility for your international divorce from the very first step to the very last. A representation service that allows proceedings to move forward without direct contact with your spouse, and cross-border matters handled through AGA, a global network of leading law firms — all available through the K-Foreigner Legal Center in one place.

FAQ. Frequently Asked Questions

Q1. Can I file for divorce in Korea even if my spouse is abroad?
A. Yes. If you are a Korean national residing in Korea, this is possible in most cases. However, how documents will be served to the other party will need to be confirmed separately.

Q2. What if divorce proceedings were filed against me in another country first?
A. If there are assets or child-related matters in Korea as well, you'll need to assess whether a Korean court can also handle the case. If proceedings are running simultaneously in two countries, an early strategy should be put in place to prevent conflicting outcomes.

Q3. Can I just get a consultation, or does it automatically lead to litigation?
A. Not at all. In an international divorce, the initial determination — jurisdiction and governing law — shapes everything that follows. The first step is simply understanding which type of situation you're in. A consultation does not have to lead directly to litigation, so start by getting clarity on the direction.