Giving Effect to a Foreign Extrajudicial Divorce Through Judicial Intervention and Recognition

Abstract

A foreign divorce, i.e., a divorce constituted abroad or according to foreign law, should be accepted into the Korean legal order, as long as no particular problem exists. The purpose lies in preserving and promoting the stability of cross-border legal relations in personal matters. Two approaches exist in this regard: the applicable law approach and the judgment recognition approach. The recognition of legal situations, which dispenses with a substantive review of whether the lex causae was correctly applied, belongs to the applicable law approach. Although there is an opposing view, the judgment recognition approach is not superior to the applicable law approach in all respects. Particularly, the conditions of recognizing a foreign judgment may be interpreted less favorably than those of recognizing a foreign legal situation. Firstly, forum legis may not be upheld as a basis of divorce jurisdiction. Secondly, the interpretive efforts to do away with the reciprocity requirement may fail. Thirdly, the process of consensual divorce as pursued in the receiving state may be seen as violating the territorial integrity of the receiving state, due to an emphasis given to its territorial sovereignty. Fourthly, an uncompleted consensual divorce may be an object of applying the lex causae, and even the object of recognition pursuant to the doctrine of recognizing a foreign legal situation. In order to embrace those possible advantages of the applicable law approach, the concurrence should be upheld between the judgment recognition approach and the applicable law approach. The conditions of recognizing a foreign judgment in family matters should be construed as being limited to international adjudicatory jurisdiction and the congruence with public policy. The requirements of the legality of the service of process and the reciprocity should be discarded, even in interpreting the existing law. This differentiation may be made in the course of applying Article 217 of the Civil Procedure Act mutatis mutandis, pursuant to Article 12 of the Family Procedure Act. On the other hand, Korean courts should also dispense with a scrutiny of whether the foreign court applied the same law as Korean courts would apply in the same situation. Furthermore, forum legis should be added to the list of jurisdictional bases. This will prevent the imbalance between the judgments recognition avenue and the applicable law avenue, including the recognition of a foreign legal situation, in particular.