Pension Division in a Korean Divorce: What a Foreign Spouse Can Claim

Consider an illustrative situation — a composite, not a real client. A foreign spouse has lived
in Korea for more than a decade, married to a Korean national. When the marriage breaks down, the
largest asset in the household is not the apartment. It is what the other spouse built up over a
long working life: an occupational retirement pension and a National Pension record. The foreign
spouse assumes there is nothing to claim — the pension is in the other spouse’s name, and the
foreign spouse may not even remain in Korea.

That assumption is common, and it is expensive. This article explains the two tracks Korean law
actually uses for pensions on divorce, the deadlines attached to each, and the points that matter
specifically to a foreign spouse. It is general information about Korean law, not legal advice for
a particular case.

Korea splits pensions two ways, not one

English-language guidance often describes divorce pension rights as though a single mechanism
divides everything. Korean law does not work that way. A pension can be relevant to a Korean
divorce in two legally distinct ways, and they are governed by different statutes, decided by
different bodies, and run on different clocks.

Confusing the two is not a harmless labelling error. Each track has its own timetable, and a
spouse who is thinking only about “the divorce settlement” can quietly lose the other.

Track 1 — a retirement pension inside property division

Property division under Article 839-2 of the Civil Act exists to liquidate and
distribute what the couple built up together during the marriage. Article 839-2 is written for
divorce by agreement; Article 843 applies the same right to a contested, court
divorce. In either case the court sets the amount and the method, weighing each spouse’s
contribution and the circumstances as a whole. One point deserves emphasis: under Article 839-2(3),
the right to claim property division is extinguished two years after the divorce.

Whether a pension belongs in that pot was contested for years. The Supreme Court of Korea, sitting
en banc on 16 July 2014 (Case No. 2012Meu2888 / 2012므2888), held that where one spouse is
actually receiving a public-official retirement pension at the close of argument in
the divorce proceedings, the entitlement carries the character of deferred wages inseparably mixed
with its social-security character. To the extent it corresponds to the marriage period, it can
therefore be included in property division — and the court may order division as a
periodic payment, a fixed percentage of each month’s pension paid to the other
spouse. The Court also accepted that a pension entitlement of this kind may be given its own
division ratio, separate from the ratio applied to ordinary assets, because its total value cannot
be fixed in the way a property’s value can.

It is worth reading that holding for exactly what it says. It concerns a public-official
retirement pension already in payment. Private-sector severance pay and corporate
retirement pensions, and entitlements that have not yet fallen due, are assessed individually —
the type of scheme, when the entitlement arises, whether it can be valued, and how it sits
alongside the rest of the marital estate all bear on the answer. Two divorces that look similar
from the outside can end differently on this point, which is why the pension question is one to put
to a lawyer early rather than to assume away.

Track 2 — the divided pension under the National Pension Act

The second track is not something a judge awards. It is a statutory right of the former
spouse’s own, claimed from the National Pension Service. Under
Article 64(1) of the National Pension Act, a person whose marriage lasted
five years or more — counting only the period of the other spouse’s National
Pension coverage during which a real marital relationship existed, so periods of separation or
desertion are excluded — may receive a divided pension if all three of the
following are satisfied:

• the marriage has ended in divorce;
• the former spouse holds an old-age pension entitlement; and
• the claimant has reached the qualifying age — stated in the statute as 60,
  although the pensionable age for the old-age pension itself is being raised in stages by year of
  birth, so the age that applies to a particular person should be confirmed.

Once payable, it continues for the claimant’s lifetime. As to amount, Article 64(2) sets the
default: the portion of the former spouse’s old-age pension (excluding any dependants’ supplement)
corresponding to the marriage period is divided equally. That default gives way to
a court outcome — under Article 64-2, where the division of the pension has been
separately determined under Civil Act §839-2 or §843, that determination governs, and the agreed or
ordered ratio must be reported to the Service.

Two time limits do most of the damage in practice. A divided pension must be
claimed within five years of the point at which all of the Article 64(1)
requirements are met (Article 64(3)). And for the many people who divorce long before the
qualifying age, Article 64-3 allows an advance claim: it may be
lodged from the moment the divorce takes effect, but only within three years of
that date. Payment still begins only once all the requirements are actually met — the advance claim
simply preserves the right instead of letting a three-year window pass unnoticed while the
qualifying age is still decades away.

What changes when the spouse is a foreigner

Nationality is not written into the divided-pension conditions. Article 64 frames
its requirements around the length of the marriage, the divorce, the former spouse’s pension
entitlement and the claimant’s age; it does not, on its face, add a nationality condition. How a
claim is handled for a non-Korean claimant, and how payment reaches someone living outside Korea,
can nonetheless turn on the individual’s circumstances and on any social security agreement between
Korea and their country. That is a question to confirm on the facts rather than to assume in either
direction.

Leaving Korea does not, by itself, end the entitlement — but it does change what
is realistic. A divided pension is the claimant’s own right rather than something the former spouse
can withdraw. At the same time, the two-year property-division deadline keeps running while a
departing spouse is rebuilding a life abroad, and evidence about the marriage period and the other
spouse’s pension record is markedly harder to assemble from another country.

Your own contributions are a separate question, and a trap. A foreign spouse who
worked in Korea will usually have paid into the National Pension themselves. Under
Article 126(1) of the Act, foreign nationals employed at a covered workplace or
residing in Korea are in principle compulsorily covered — but not where the foreign national’s home
country does not apply its equivalent pension scheme to Korean nationals. More consequentially,
Article 126(4) disapplies the lump-sum refund provisions (§§77–79) to foreign
insured persons, subject to defined exceptions: where the home country’s law would pay a Korean
national an equivalent lump sum, for foreign workers under the Act on the Employment of Foreign
Workers, and for certain industrial trainees. Whether a departing foreign spouse can take their own
contributions out of Korea therefore depends on nationality and status, not on intention — and the
answer is often the opposite of what people expect.

Whether Korean law governs at all comes first. Where a marriage has a foreign
element, jurisdiction and applicable law are threshold questions in their own right, and they are
resolved before anyone reaches Article 839-2. Our guide to
consolation
money versus property division in a Korean divorce sets out how the financial claims fit
together, and our overview of divorce
by mutual consent for foreign couples covers the procedural route. For the wider picture, see
our page on international divorce in Korea.

Frequently asked questions