[Chatting] "Breaking up with my husband...I'm asking for the division of the apartment's property."

□ Broadcast date and time: October 15, 2024 (Tue)
□ Host: Attorney Jo In-seop
□ Starter: Attorney Jeong Du-ri

* The text below may differ from the actual broadcast content, so please check the broadcast for more accurate information.

◇ Lawyer Cho In-seop (hereinafter referred to as Cho In-seop): When playing Go, a trainer who is watching from a distance one step away often points out a trick. It is said that the reason why the spectators see a great number is because they look at the checkerboard one step away without the burden of winning or losing, so why don't you look at the complicated things one step away? Lawyer Cho In-seop's Counseling Center will open now.

◇ Jo In-seop: Lawhouse for you, with lawyer Jung Du-ri. Hello?

◆ Lawyer Jung Du-ri (hereinafter referred to as Jung Du-ri): Hello, I'm lawyer Jung Du-ri of Shinsegae Law Firm.

◇ Jo In-seop: Now... What's the story of today's worries?

□ Reporter: At a young age, I lost my husband and raised my child alone. I went to a local church because I needed a place to rely on my heart... There, I met a man who, like me, left his wife and raised his child alone. Since we've been married once in a while, we decided not to register our marriage but to combine our housekeeping, and 10 years have passed. In the meantime, we greeted our parents during the holidays, and when they died, we wore mourning clothes as a daughter-in-law and son-in-law. When my husband's son got married, I even sat in the mat. Then it was one day. While I was on a business trip to Japan for work, my husband attracted a woman who went to my house. When I found out about this late, I talked to my husband. Then, my husband got angry and assaulted me, asked me to break up, and ran away. And a few days later... I ordered my married son to take out all my luggage. My son told me that my father told me to take out my luggage because I broke up with you. That's how I thought the whole relationship was over. But about a year and eight months later, he filed a claim for property division against me. In fact, I had a lot more wealth than him, and the market price of my Seoul apartment has risen a lot recently. Can you do this when you've been cheating on me unilaterally and you've left the house? Should I split my property even though I lived without a marriage registration? Can I sue him now for cheating and assaulting me? There is also a collection of hospital medical certificates and texts.

◇ Cho In-seop: Attorney Cho In-seop's Counseling Office Today was a story of a couple who were in a common-law relationship. You lived together for more than 10 years, and when your parents died... At the funeral, he was greeted by his daughter-in-law and son-in-law. He said he sat in the guest room at the other child's wedding. Then... I didn't register my marriage, but it's the same as a couple. Couples like this are common, right? How many?

◆ Jungdu-ri:

◇ Cho In-seop: But... As expected, property division seems to be a problem. Can the other party file a claim for property division with you?

◆ Jung Du-ri: Yes, if a common-law relationship can be recognized between the sender and the other party, according to our Supreme Court precedent, a common-law party can also claim the division of property due to the dissolution of the common-law marriage.

◇ Cho In-seop: What requirements do you have for a common-law relationship to be recognized?

◆ Jung Du-ri: Yes, in order for a common-law marriage to be established, there must be an agreement between men and women to form an economic living community by combining permanently, to acquire the institutional effects of the social system of marriage, that is, rights and obligations, to have an entity of marriage that can recognize the common-law life in terms of family order, objectively, and to meet social justification requirements such as not being a serious common-law marriage.

◇ Cho In-seop: In the case of the sender, is a common-law marriage recognized?

◆ Jung Du-ri: In the case of the story, it is a question of whether there was an entity of marriage that could objectively recognize marital cohabitation. Although they did not have a wedding ceremony, they each went on a family trip, wore mourning clothes when their parents died, and served as daughter-in-law and son-in-law. When the other person's child had a wedding ceremony, they sat in the matriculation room, so there is a reality of marriage that can recognize marital cohabitation in terms of family order, so a common-law relationship can be recognized beyond simple cohabitation. However, if you have engaged in religious activities, you will argue about whether you have played a role as a family, or if you have lived together for 10 years, the key is whether the addresses are the same on the copy of your resident registration for 10 years.

◇ Jo In-seop: If a common-law relationship is recognized, would it be possible to divide the property by dissolving the common-law relationship?

◆ Jung Du-ri: Yes, when dissolving a common-law marriage, there is no need to go through legal procedures such as a divorce trial or a divorce report, and it can be resolved by agreement between the parties, or it can be resolved by notification of the separation of one party who committed the liability. Even if it is not a legal marriage, if there is a property formed by the two sides in cooperation during the common-law marriage, they can claim property division as in the case of a divorce, and the procedures and contents of the property division claim are mostly the same as in the case of divorce. According to Article 839-2 (2) of the Civil Code, the right to claim the division of property expires two years after the date of divorce, and it is the same even if two years have passed since the de facto marriage relationship was dissolved. In the case of the case, since the other party filed a claim for property division within a year and eight months after running away from home, there is no problem with the exclusion period, so it seems that you will have to actively fight the other party's claim for property division.

◇ Cho In-seop: Is the apartment you own subject to property division?

◆ Jung Du-ri: Yes, property that is subject to property division refers in principle to property that is collected jointly by a couple during marriage. Couples' joint property includes real estate, deposits, stocks, bonds, and insurance, and debts related to couples' joint life are also subject to property division. The apartment owned by the person in question seems to have been owned even before the marriage, and in the case of legal marriage, property held before the marriage or property acquired by one couple as inheritance, gift, or gift during the marriage cannot be subject to property division in principle as it is unique property of one couple. However, if the other party is admitted to have cooperated in maintaining or increasing its unique property, it may be subject to property division. In the end, the key is whether it can be acknowledged that the other party cooperated with the maintenance or increase of the apartment the writer owned.

◇ Cho In-seop: If the apartment is subject to property division, the market price of the above apartment seems to have increased since the dissolution of common-law marriage, so when is the standard time for property division following the dissolution of common-law marriage?

◆ Jung Du-ri: In the case of a judicial divorce, the Supreme Court regarded the timing of the division of property as the conclusion of the factual hearing, while "the property and amount subject to division in the division of property due to the dissolution of the common-law shall be determined based on the date of dissolution of the common-law marriage (the Supreme Court sentenced on January 4, 2024 2022." Therefore, in the case of the sender, if the other party unilaterally notifies the separation and runs away from home in a common-law state, the date may be the reference point for the division of property. However, the precedent said, "The main purpose of the property division system is to liquidate and distribute the property jointly formed by the couple during the marriage when dissolving the marriage relationship, and to divide the active property achieved through cooperation between the couple and the debt borne by the formation to determine the share to be attributed to each person. If there are special circumstances, such as attributing profits or damages to one party, it may be taken into account in calculating the value of the property subject to division (see Supreme Court 2024.1.4. Sentence 2022m11027 ruling)." Even if the price of the apartment owned by the writer has changed after the dissolution of the common-law marriage, the standard time for calculating the value of the real estate will be the dissolution of the common-law marriage unless there are special circumstances. Whether there are special circumstances depends on the case and you have to fight enough, so it would be good to get help from an expert.

◇ Jo In-seop: Is it possible to claim alimony for the other person's cheating and assault? He received a hospital medical certificate when he was assaulted, and there is text evidence of cheating.

◆ Jungdu-ri:

◇ Jo In-seop: Now, to summarize what we've done so far... If the common-law relationship between you and the other party is recognized, you can claim the division of your property. In order for common-law marriages to be recognized, marriage intentions must be consistent, marital co-living must be recognized, and not serious. In your case, you did not have a wedding, but a common-law marriage may be recognized as a family activity. In the case of dissolution of a common-law relationship, property division is possible without legal procedures and must be claimed within two years. Your apartment is a unique property before marriage and is not subject to property division in principle, but if the other party's cooperation is recognized, it may be subject to property division. The standard for property division following the dissolution of common-law marriage is the dissolution date of common-law marriage, and changes in apartment market prices are based on this point unless there are special circumstances. So far, I've been with lawyer Jung Du-ri.

◆ [Jeong Du-ri] Thank you.

◇ Cho In-seop: You can listen to <Attorney Cho In-seop's Counseling Office> again on YouTube. If you have any questions or suggestions, please comment.