A Legislative Study on Applicable Laws for International Marriage and Divorce

Abstract

This article aims to present how to revise the choice-of-law rules for international marriage and divorce in the Korean Private International Law Act of 2001 (hereinafter the “KPILA”). To this end, this article reviews all the arguments, as much as possible, for the choice-of-law policy suggested before the enactment of the KPILA, and foreign legislations, including the instruments of the Hague Convention on Private International Law and the European Union. The KPILA is based on the principle of nationality in relation to the laws governing the personal status, including the establishment and effects of marriage, and divorce. While maintaining this approach, it is necessary to expand the principle of habitual residence and, for this purpose, to specify the concept and criteria of habitual residence in the KPILA. As to the nationality of the person with multiple nationalities, there is a necessity to abolish the prejudiced principle of the priority of Korean nationality and find what is most closely related to the person among the nationalities, primarily based on the location of habitual residence. As for the substantive requirements for marriage, while maintaining the principle of distributive connection, in order to stipulate the consequences of interpretation of public policy under the KPILA and to resolve the difficulties interpreting the bilateral (one-sided) or multilateral (two-sided) grounds for interrupting the establishment of marriage, it is necessary to add a new provision in the KPILA that specifies as internationally mandatory rules the provisions in Korean Civil Code (hereinafter “KCC”), i.e. Articles 815 and 816, for the grounds for annulment or cancellation of international marriage. While maintaining the principle of selective connection with respect to the formal requirements of marriage, it needs to revise the KPILA and the Korean Family Relations Registration Act to enable the marriage registration of foreigners married in Korea in order to protect domestic transactions, and to revise the KCC to ensure that consular marriages are possible between Koreans and foreigners in order for the management and supervision by the KCC and Korean public officials (consuls, etc.) on Korean nationals marrying abroad. As to the general effects of marriage, while maintaining the objective principle of subsidiary connection without recognizing the party autonomy, there is a need to amend the KPILA to give priority to the law of the place of common habitual residence over the law of common nationality. For the perspective of the choice-of-law policy, it is necessary to treat the foreigners in Korea equally, especially the foreign couples of the same nationality living in Korea, by ensuring the application of Korean law. With respect to divorce, while applying mutatis mutandis the objective principle of subsidiary connection regarding the general effects of marriage, it needs to establish a new provision that recognizes the corrective connection to the law of forum and another new provision specifically stipulating that some of the side effects of divorce, such as the effects of parenthood, the maintenance and the guardianship, are not governed by the law governing divorce.