International divorce litigation often comes to a halt even before the procedure properly begins.
In many cases, one spouse has left the country and cannot be reached, or conflict has escalated due to one party leaving home, prompting the other to consider filing a lawsuit.
However, when it comes time to actually begin the legal process, many find that they cannot confirm the other party’s address or have no way to deliver the required documents, causing the case to stall repeatedly.
To move the case forward, everything from determining jurisdiction to establishing a valid method of service must be examined carefully — tasks that are difficult for an individual to manage alone.
If you want to navigate this complex structure properly, it is crucial to seek guidance from a legal representative at the early stage to set the right direction.
Contents
1. First, determine whether an uncontested (mutual agreement) divorce is possible.
2. If the spouse’s whereabouts are unknown, you can proceed through “public service of process.”
3. If there was no intent to form a marriage, a “marriage annulment action” takes priority over a divorce.
4. Case example: Resolving divorce and child custody issues through public service of process.
5. The more unclear the situation is, the more important it becomes to organize the procedure first.
1. First, determine whether an uncontested (mutual agreement) divorce is possible.
When considering the legal dissolution of a marriage to a foreign spouse, an uncontested (mutual agreement) divorce may seem like the simplest option, but in reality, it is often difficult to apply.
An uncontested divorce requires both parties to appear in court in person. Therefore, if the spouse has already left the country or does not have a confirmed schedule to stay in Korea, the process inevitably comes to a halt.
Even if communication continues, the court may require resubmission if the agreement lacks proper interpretation, or if the signatures do not meet the required format. In other words, even small mistakes in preparing the documents can cause the entire process to be reset.
Because of these practical difficulties, pursuing international divorce litigation may be the more realistic alternative.
In such cases, you will need evidence showing that the marital relationship has effectively come to an end.
Preparing the following in advance will be helpful for the litigation process:
- The date the separation began
- Immigration (entry/exit) records
- Relevant messages or communications
Having these organized early will aid significantly in preparing for the trial.
2. If the spouse’s whereabouts are unknown, you can proceed through “public service of process.”
If you have lost contact with your foreign spouse and cannot even confirm their place of residence, an uncontested divorce is no longer possible. Even if you attempt to shift toward litigation, the proceedings cannot move forward if the complaint cannot be delivered to the other party.
In situations where service of process is practically impossible, there is a court-recognized method in which documents are posted publicly and considered legally served. This is called public service of process.
However, to request public service of process, all of the following requirements must be met:
- You must be unable to determine the spouse’s address.
- You must provide evidence that you made reasonable attempts to locate their residence through various methods.
- The entire search process must have been carried out according to the prescribed procedures.
- The information collected must be shown to be based on objective facts.
Once these four requirements are satisfied, the court will approve the use of public service of process, and the litigation can then proceed normally.
3. If there was no intent to form a marriage, a “marriage annulment action” takes priority over a divorce.
When attempting to resolve a marriage with a foreign spouse, the first step is to determine whether the issue stems from ordinary conflict or whether the marriage itself was merely formal and lacked genuine intent.
For example, if contact was severed immediately after the marriage was registered and there is no evidence of having lived together, it may indicate that there was no sincere intention to establish a marital relationship from the beginning.
In particular, if the marriage registration was filed solely for the purpose of obtaining legal residence in Korea and the spouse disappeared soon afterward, this may constitute a fraudulent marriage. In such cases, filing a marriage annulment action may be more appropriate than proceeding with a standard divorce claim.
To assert that the marriage was never valid in the first place, you must provide evidence supporting that claim. This includes immigration records, communication history, and statements from acquaintances — any material that clearly demonstrates the absence of an actual marital life.
Unlike international divorce litigation, pursuing a marriage annulment involves stricter standards and a more complex process.
Even when the circumstances seem clear, making decisions alone can carry risks. Seeking assistance from a legal professional from the outset can lead to a safer and more effective course of action.
4. Case example: Resolving divorce and child custody issues through public service of process.
The client is a Korean man in his late 30s who had established a family in Korea after registering his marriage with his spouse, a Chinese national.
The couple lived together while raising their young child, but not long after the marriage, the spouse left the country saying she would visit her hometown. After leaving, she cut off contact without any further explanation and remained abroad for an extended period.
The client continued living alone with the child and initially considered an uncontested divorce. However, because the spouse was no longer in Korea and could not be reached, the process could not move forward.
He then attempted to proceed with international divorce litigation, but faced difficulties even at the very first step — serving the complaint — because the spouse’s whereabouts could not be confirmed. To resolve this issue, the client decided to seek assistance from a legal representative.
Based on immigration records, emails, text messages, and other relevant information, the legal representative filed a request for public service of process with the court. The credibility of the evidence and the legitimacy of the procedure were recognized, allowing the lawsuit to formally proceed.
As a result, the court accepted the client’s claim for divorce and granted him sole custody of the child.
5. The more unclear the situation is, the more important it becomes to organize the procedure first.
International divorce litigation is not simply about legally ending a marital relationship. When the other spouse is abroad or completely out of contact, not only is an uncontested divorce impossible — in many cases, the court process itself cannot even begin.
Furthermore, if the marriage existed only in form and there was no real marital life, a marriage annulment may be more appropriate than a divorce claim.
Because the appropriate procedure, required evidence, and the court’s standard of review all vary depending on the circumstances, it is important to set the right direction from the very beginning.
With certification from the Korean Bar Association in family law, our legal representative personally handles cases involving foreign spouses, public service of process, and marriage annulment, providing tailored strategies based on extensive experience.
If your worries are getting longer, it is wise to review the proper procedure before making any emotional decisions.
These matters are often too complex to handle alone. Seeking professional advice at this stage can be the most practical way to avoid unnecessary delays and resolve your situation efficiently.
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