5 Basic Principles of Equal Marriage Law
5 Basic Points of the Equal Marriage Law
The Office of Justice Affairs has identified 5 basic points of the Equal Marriage Law as follows:
1. Right to Engagement
"Both parties" can engage if they are at least 18 years old.
– An engagement is complete when the "fiancé" delivers or transfers the engagement property to the "fiancée" as proof of their intention to marry.
– The "engagement property" becomes the property of the fiancée.
– In the event that the fiancée "breaches the engagement contract," the engagement property must be returned to the fiancé (according to the law on unjust enrichment).
Once an engagement has been established, whichever party "breaches the engagement contract" must pay compensation… (as decided by the court)
– Compensation for damage to the body or reputation of the fiancé or fiancée.
– Compensation for damages incurred by the fiancée, parents, or persons acting in a similar capacity as parents who honestly and appropriately spent or incurred debts in preparing for the marriage.
– Compensation for damages incurred by the fiancée who appropriately managed their property/profession/income in anticipation of the marriage.
– If a significant event occurs to the fiancée. – If a significant event occurs to the fiancé/fiancée making the prospective spouse unsuitable for marriage (e.g., discovering after the engagement that the spouse has a serious sexually transmitted disease), the fiancé/fiancée has the right to terminate the engagement contract and request the return of the engagement gifts.
– If a significant event occurs to the fiancé/fiancée making the prospective spouse unsuitable for marriage, the prospective spouse has the right to terminate the engagement contract and is not required to return the engagement gifts.
In the event of a fiancé/fiancée's death before marriage, the other party cannot claim compensation, and the engagement gifts or dowry do not need to be returned.
A fiancé/fiancée may claim compensation:
– Compensation from a person who had sexual relations with or satisfied the sexual desires of their fiancée/fiancée, knowing or having reason to know of the engagement (requiring termination of the engagement contract).
– Compensation from a person who raped or attempted to rape their fiancée/fiancée, knowing or having reason to know of the engagement (requiring termination of the engagement contract).
A claim for compensation must be made within 6 months from the date the claimant knew or should have known of the act or the identity of the person liable for compensation, but no later than 5 years from the date the act was committed.
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2. Right to Register Marriage
Both parties must be at least 18 years old to marry. (However, in justifiable cases, the court may permit marriage earlier.)
Marriage
– Both individuals must “consent” to be spouses and must express their consent “openly” in front of the registrar, who will then record the consent (marriage registration).
– When there are special circumstances that make “marriage registration with the registrar impossible” because one or both parties are in imminent danger of death/war/struggle, etc.:
1) Both individuals must express their intention to marry in front of a legally competent person present at that location.
2) That person must then record the expression of intent to marry as evidence.
3) Subsequently, both individuals must register their marriage within 90 days from the date on which registration could be possible with the registrar, providing evidence and the special circumstances in the marriage register.
Persons Who Cannot Marry
– Mentally ill persons (e.g., those with mental disorders, insanity) or those lacking competence. (Unable to manage themselves)
– Two persons who are direct blood relatives, either ascending or descending.
– Siblings sharing the same parents or only one parent.
– A person cannot marry while already having a spouse (bigamy is prohibited).
Dowry is property of the fiancée's party given to the parents/adoptive parents/guardians of the fiancée's party in exchange for agreement to marry.
If the marriage does not take place due to a significant event affecting the fiancée, or due to circumstances for which the fiancée is responsible, making it inappropriate for the fiancée to marry, the fiancée's party may reclaim the dowry (according to the law on unjust enrichment).
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3. Right to Marital Care (Relationship Between Spouses)
– Spouses must live together as spouses.
– Spouses must support and maintain each other's lives according to their abilities and financial status.
– If spouses cannot live together peacefully as spouses, or if living together would endanger their physical or mental health, or significantly disrupt their happiness, they may request the court to issue an order allowing them to separate during the event and ordering one spouse to pay maintenance.
– If the court declares one spouse incompetent/quasi-incompetent, the other spouse shall be appointed as guardian or conservator. Alternatively, upon request from an interested party or the public prosecutor, and with significant grounds, the court may appoint another person to act in their place.
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4. Right to Manage Spouse's Property and Debts
If spouses “did not enter into a special contract” regarding property before marriage, marital property law separates property into “separate property” and “marital property” as follows:
Separate Property
1. Property owned by either spouse before marriage.
2. Property consisting of personal belongings, clothing, jewelry commensurate with their status, and tools or equipment necessary for their occupation or profession.
3. Property acquired during marriage. By inheritance or gratuitous gift.
4. Engagement gifts.
Marital Property
1. Property acquired during marriage.
2. Property acquired during marriage by will or a written gift specifying it as marital property.
3. Property that is the fruit of separate property.
*In case of doubt as to whether any property is marital property? (It should be presumed to be marital property)
– Contracts concerning property made by spouses during marriage may be terminated by either spouse while they are married or within 1 year from the date of divorce.
– In cases where marital property is real estate or involves important documents, either spouse may request that their name be added as joint owner in the documents.
– Spouses must manage marital property jointly or with mutual consent. (This is a written document) from the other party in the following cases:
1) Selling, exchanging, selling with a right of redemption, leasing, mortgaging, releasing a mortgage, or transferring mortgage rights over real or movable property.
2) Establishing or terminating easements, rights of residence, surface rights, usufruct rights, and encumbrances on real estate.
3) Leasing real estate for more than 3 years.
4) Lending money.
5) Giving gifts, except gifts appropriate to the family's financial status for charity/social purposes/due to moral duty.
6) Reaching a compromise.
7) Submitting a dispute to arbitration.
Using property as collateral or security to an official or court.
– Either spouse has the right to sue, defend, or conduct proceedings concerning the preservation, maintenance, or benefit of marital property, in which case any debt is incurred, and both spouses are considered "joint debtors."
– Either spouse "does not have the authority to make a will bequeathing more than their share of marital property to another person."
– If one spouse "has sole authority to manage the property," the other spouse has the authority to manage the house and provide necessities for the family appropriately according to their means. The aforementioned expenses shall come from the marital property and the separate property of both parties.
– If one spouse “manages or is causing significant damage to the marital property,” the other spouse may request the court to issue an injunction or limit this power.
– A spouse may request the court to grant sole management of the marital property, order the separation of the marital property, or prescribe temporary protective measures if the other spouse with the authority to manage the marital property acts as follows:
1) Managing the marital property in a way that causes significant damage.
2) Failing to provide support to the other spouse.
3) Having excessive debt or incurring debts exceeding half of the marital property.
4) Obstructing the other spouse's management of the marital property without reasonable cause.
5) Exhibiting behavior that appears likely to cause ruin to the marital property.
– During marriage, neither spouse may seize or attach the other spouse's assets, except in litigation, for alimony, and court fees.
– If one spouse is liable for “personal debts,” it must be paid with “separate assets.” If this is insufficient, it must be paid with “marital assets that are their respective shares.”
– If spouses have “joint debts,” the debts must be paid from the “marital assets and separate assets” of both spouses.
– Debts for which spouses are “joint debtors” include debts incurred during the marriage, as follows:
1) Debts related to household management and providing necessities for the family, support, medical care for family members, and education of children, commensurate with their means.
2) Debts relating to marital assets.
3) Debts arising from work performed jointly by the spouses.
4) Debts incurred by one spouse for their sole benefit, but ratified (acknowledged) by the other spouse.
– If a spouse is declared bankrupt, marital assets are separated (become separate assets) by operation of law from the date of the court's judgment.
– If there are “no longer any marital assets,” the spouses must jointly contribute to the household expenses. Regarding the management of household assets, both majority and minority, of one's personal property:
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5. Right to Divorce
Divorce by Mutual Consent
– The spouses must agree in writing on which party will have custody of the children. If they do not agree or cannot agree, the court will make a ruling.
– The spouses must agree in the divorce agreement on the amount of child support and maintenance each party will pay.
Divorce is complete only when the spouses register the divorce. If one spouse or fiancé/fiancée has a relationship with another person, regardless of gender, compensation can be claimed and this can be grounds for divorce.
Divorce Lawsuit Required:
1) Supporting or honoring another person as a spouse; committing adultery or regularly engaging in sexual relations with another person; or regularly performing or accepting acts with another person to satisfy one's own or another's lust.*
Upon Court Judgment of Divorce:
– The spouse has the right to receive compensation from the other spouse and from the person who received support, honor, or was the cause of the divorce.
– The spouse has the right to claim compensation from the person who committed adultery with the spouse or who openly presented themselves as having an adulterous relationship with the spouse.
If either spouse consents or is complicit: Divorce and compensation cannot be sought.
2) Misconduct causing severe humiliation/disgrace/hatred/excessive damage or distress to the other spouse.*
If either spouse consents or is complicit: Divorce cannot be sought.
3) Severe physical or mental abuse/torture/insulting of the other spouse or their parents.
4) Intentional abandonment for more than 1 year, such as imprisonment for more than 1 year in which the other spouse is not involved in the crime, voluntary separation because normal cohabitation has not been possible for 3 years, or separation by court order for more than 3 years.
5) Declared missing by a court, or having left their domicile or place of residence for more than 3 years without anyone knowing their whereabouts.
6) Failure to provide adequate support or maintenance, or serious hostility towards the marital relationship.
7) Being mentally ill for more than 3 years and unlikely to recover, to the point that continued cohabitation as spouses is impossible.
9) Having a serious, incurable contagious disease.
10) Having a physical condition that permanently prevents sexual intercourse or sexual gratification.
If the breach of probation stems from a spouse's misconduct but is minor or unrelated to cohabitation: The court may order that no divorce be granted.
11) Having a serious, incurable contagious disease.
12) Having a physical condition that permanently prevents sexual intercourse or sexual gratification.
If such physical condition is caused by the other spouse: A divorce cannot be filed.
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Thank you for the helpful information from DD-Property.
