Which Country Has Jurisdiction Over an International Divorce?

Short Answer

More than one country may have jurisdiction over an international divorce. Whether a Korean court may hear the case depends on the rules of Korea's Act on Private International Law, including both its general jurisdiction principles and the special jurisdiction rules for matrimonial proceedings.

In many international divorce cases, jurisdiction does not depend solely on nationality or the place where the marriage took place. Instead, Korean courts consider factors such as the parties' habitual residence, their connection with Korea, the location of their children and assets, and other legally relevant circumstances.

Because more than one country may have jurisdiction over the same divorce, choosing the appropriate forum can significantly affect property division, child custody, service of process, costs, timing, and the recognition or enforcement of future judgments.

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What Does Korean Law Provide?

International jurisdiction in Korean divorce cases is principally governed by the Act on Private International Law.

As a general rule, Article 2 provides that Korean courts may exercise international jurisdiction where the parties or the dispute have a substantial connection with Korea.

For divorce and other matrimonial proceedings, Article 56 establishes specific jurisdictional rules. Depending on the circumstances, Korean courts may exercise jurisdiction based on factors including:

• A spouse's habitual residence (일상거소) in Korea.
• The parties' last common habitual residence.
• Whether one or both spouses are Korean nationals.
• Other jurisdictional grounds specifically recognized by the Act.

The concept of habitual residence generally refers to the place where a person has established the center of his or her daily life. It may differ from a person's formal residence, nationality, or temporary place of stay.

Where one of the jurisdictional grounds under the Act is satisfied, a Korean court may exercise jurisdiction even if another country could also hear the same dispute.

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How Does It Work in Practice?

Many people assume that jurisdiction automatically belongs to the country where the parties married or where one spouse currently resides. In reality, international divorce jurisdiction is often far more complex.

For example, Korean courts may have jurisdiction where:

• One spouse currently has a habitual residence in Korea.
• The parties' last common habitual residence was in Korea.
• Significant marital assets are located in Korea.
• The facts giving rise to the divorce have a substantial connection with Korea.
• Important witnesses or evidence are located in Korea.

Conversely, the fact that another country's courts may also have jurisdiction does not necessarily prevent a Korean court from hearing the case. International jurisdiction is frequently concurrent rather than exclusive, and more than one country's courts may properly exercise jurisdiction over the same matrimonial dispute.

The Korean Supreme Court has likewise recognized that jurisdiction may exist even where neither party is a Korean national, provided that the dispute and the relevant facts have a substantial connection with Korea.

It is also important to distinguish international jurisdiction from governing law.

Jurisdiction determines which country's courts may hear the dispute.

Governing law determines which country's substantive law applies to the divorce and related issues.

Accordingly, a Korean court may have jurisdiction over an international divorce while applying foreign law to some aspects of the dispute, depending on the applicable conflict-of-law rules.

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What About Child Custody and Child Support?

Jurisdiction over the divorce itself does not automatically determine jurisdiction over every related family law issue.

Under the Act on Private International Law, matters involving parental responsibility, child custody, and visitation are subject to separate jurisdictional rules that place significant weight on the child's habitual residence.

Similarly, proceedings concerning child support may follow separate jurisdictional provisions based on the child's or creditor's habitual residence.

For this reason, an international divorce involving children often requires a separate jurisdictional analysis for custody, visitation, and support, even where the divorce itself proceeds before a Korean court.

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What Should Foreign Clients Know?

Before deciding where to file an international divorce, foreign clients should carefully consider:

• Identify each spouse's nationality and current habitual residence.
• Determine whether another divorce proceeding has already been filed in another country.
• Review the location of children, real estate, bank accounts, and other significant assets.
• Consider whether Korean or foreign law is likely to apply to particular issues.
• Evaluate whether a future judgment will need to be recognized or enforced in another jurisdiction.
• Consult Korean counsel before commencing proceedings where more than one country may have jurisdiction.

Selecting the appropriate forum at the outset may significantly affect the efficiency, cost, and overall outcome of the case.

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Conclusion

Determining which country has jurisdiction over an international divorce is rarely as simple as identifying the parties' nationality or the place where they married. Korean courts apply the Act on Private International Law, considering factors such as the parties' habitual residence, their connection with Korea, and the specific jurisdictional rules governing matrimonial proceedings.

Jurisdiction and governing law are separate legal questions, and more than one country may have jurisdiction over the same dispute. Where an international divorce involves multiple jurisdictions, children, overseas assets, or parallel proceedings abroad, obtaining legal advice at an early stage can help avoid unnecessary procedural disputes and ensure that the case proceeds in the most appropriate forum.

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