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There are two main ways to divorce: divorce by agreement and divorce by trial. If the couple agrees on divorce, they can obtain a divorce by agreement, and if no agreement is reached, they can obtain a judicial divorce through a court trial at the request of one of the parties.
If the couple has not reached an agreement regarding divorce or is expecting a fight and wants to resolve the issue through litigation from the beginning, they can file a divorce suit in court and obtain a ruling to obtain divorce. This is called a judicial divorce.
In order for a divorce to be possible at trial, there must be a cause specified in Article 840 of the Civil Code.
As a rule, the spouse who is primarily responsible for the breakdown of the marriage (the at-fault spouse) cannot file for divorce on his own because of the breakdown. This is because it is fundamentally against morality for a person who brought about the breakdown of a marriage to file for divorce and could result in divorce or eviction divorce by one spouse.
However, in special cases as listed below, a divorce request by the at-fault spouse is exceptionally acknowledged.
When divorcing through litigation, it is more important than anything to secure thorough evidence. Evidence proving the other party's fault has a significant impact on key decisions such as calculating alimony, dividing property, and designating a person with parental authority and guardians for the child.
Recently, with the development of media, various types of materials are being submitted as evidence in divorce lawsuits. However, if illegal methods are used in the process of securing evidence, it may lead to unfavorable results, so special caution is required.
Therefore, if you are considering a divorce lawsuit, it would be wise to thoroughly review through legal consultation in advance what evidence is needed and how to secure it, and prepare in a legal and effective manner.
Judicial divorce can be divided into litigation divorce and mediation divorce depending on the method and procedure. Litigation divorce involves receiving a court ruling, and mediation divorce is establishing divorce through court mediation procedures on the premise of agreement between the parties.
Unlike litigation, mediation is a system that listens fully to the opinions of the parties in a free atmosphere, takes into account various circumstances, and resolves issues peacefully through mutual compromise and concessions. This mediation procedure has the advantage of minimizing disputes and amicably resolving conflicts between parties.
Before filing a divorce suit, you may first apply for mediation to the Family Court. If a divorce suit is filed without a mediation application, the Family Court may refer it to mediation ex officio. Once the mediation date is set, both parties must appear in court, and if a divorce agreement is reached between the couple during this mediation stage, the divorce is established immediately.
When mediation is established, the contents of the agreement are recorded in a record, which is called a mediation record. The mediation record has the same effect as a final judgment. If the other party does not fulfill the obligations stipulated in the conciliation protocol, compulsory execution may be carried out based on the conciliation protocol.
On the other hand, if one of the parties does not appear on the mediation date, if no agreement is reached between the parties, or if the content of the agreement between the parties is deemed inappropriate, the mediation committee or the judge in charge of mediation may decide ex officio to replace mediation.
If mediation is not established or an objection is raised against a decision to replace mediation, the mediation procedure is terminated and converted to a litigation procedure.