Constructive Desertion

Malicious Desertion

Under the Civil Act of the Republic of Korea, divorce may be granted “if one spouse has maliciously deserted the other” (Article 840, Subparagraph 2).

The Supreme Court of Korea has interpreted “malicious desertion” under Article 840(2) to mean a situation where “a spouse, without just cause, abandons the other and renounces the duties of cohabitation, support, and cooperation as required in marriage.”

Cases Recognized as Malicious Desertion
• Cohabiting with another person and maintaining an adulterous relationship.
• Leaving one’s wife who suffered from a mental illness and entering monastic life as a Buddhist monk.
• Neglecting child-rearing responsibilities and repeatedly leaving home without justification.

Cases Not Recognized as Malicious Desertion
• Fleeing from the home due to a spouse’s violence or abuse.
• Temporarily leaving the marital residence due to severe marital discord.
• Living apart with the other spouse’s consent.
• Living separately due to unavoidable circumstances such as financial hardship, medical treatment, or mandatory job relocation.

Thus, under Korean law, “malicious desertion” essentially presupposes a state of separation.

Constructive Desertion

“Constructive desertion” is a concept in the common law system (such as in the United Kingdom and certain U.S. states) whereby a spouse who has forced the other to leave the marital home through intolerable or wrongful conduct is deemed the deserter by legal fiction.

A representative case is the 1955 Privy Council decision in Lang v. Lang.

In that case, the husband made an unreasonable demand that his wife cease all contact with her parents in order to continue living with him. The wife refused and left the home. The husband claimed that she had deserted him.

The issue was whether the wife had deserted the husband by leaving, or whether the husband, by making such an unfair demand, had constructively deserted his wife.

The Privy Council held that the husband, having driven the wife to leave, was to be considered the deserter.

This doctrine of constructive desertion continues to be recognized in jurisdictions that maintain fault-based divorce, including certain U.S. states such as Georgia, Virginia, New Jersey, and Mississippi.

Case Won by Yeohae Law Firm: Recognition of Malicious Desertion Through Constructive Desertion

Yeohae Law Firm successfully argued the concept of constructive desertion before the Incheon Family Court (Appellate Division), overturning a complete loss at first instance and achieving a complete victory on appeal.

A Cambodian national, with her husband’s consent, visited her parents with their child and later remained in Cambodia with his agreement. While maintaining contact with her, sending affectionate text messages, and explaining his financial difficulties, the husband stopped sending living expenses. The wife did not blame him and instead supported herself and their child through her own work.

Nevertheless, the husband filed a lawsuit in Korea, claiming his wife had gone to Cambodia, failed to return, and could not be located. The trial court ruled in the husband’s favor.

On appeal, Yeohae Law Office argued, using the doctrine of constructive desertion, that while it appeared the wife had not returned to Korea, in reality the husband had prevented her from doing so, using the judicial process itself as a means to keep her abroad.

Appellate Court’s Judgment

The appellate court stated:

“Although the plaintiff (husband) was fully aware of the defendant’s (wife’s) whereabouts, he nevertheless claimed before the trial court that her whereabouts were unknown, obtained a divorce judgment by public notice service, and unilaterally ceased providing child support and living expenses.”

The court further held:

“It was the plaintiff, not the defendant, who maliciously deserted the other, thereby causing the breakdown of the marriage.”

Accordingly, the court dismissed the husband’s divorce petition, upheld the wife’s counterclaim, and dissolved the marriage on that basis.

The court also designated the wife as the custodian and caregiver of the child, ordering the husband to pay 10 million KRW in consolation money (damages), 15 million KRW in past child support, and 800,000 KRW per month in future child support until the child reaches adulthood.

Significance of the Judgment

In some international marriages, a spouse may secretly initiate divorce proceedings while the other is temporarily visiting their home country, thereby preventing their return to Korea once their visa expires.

This ruling establishes a clear judicial standard for a new form of desertion that can arise in international marriages. It serves as an important precedent for protecting the rights and interests of multicultural families.

Learn More About International Divorce