[Chatting] After the marriage agreement, I even cleaned up my assets.Husband with Cancer "Being Responsible for Supporting, too"

□ Broadcast date and time: October 22, 2024 (Tue)
□ Host: Attorney Jo In-seop
□ Starter: Attorney Cho Yoon-yong

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

□ Reporter: I immigrated to Australia with my parents as a child and finished college. After graduating, I returned to Korea alone, got a job as a foreigner, married a Korean husband, and had a daughter. I had a conflict with my husband from the beginning of my marriage. My husband was violent, forcing sex and using violence. Maybe his work life was not smooth, he repeatedly retired and changed jobs, and eventually, when he was married for about five years, he quit his job and invested in stocks full-time. My husband's income has always been unstable. So I worked right after giving birth, and my parents, who felt sorry for me, added a lot of money to buy me a house. Parenting and work... I was having a hard time doing housekeeping... I have the opportunity to work as a resident employee in Australia. I took my daughter and left right away. I was calm and happy while I was away from my husband. As time goes by... My daughter stayed in Australia and went to college, and I came back to Korea alone and lived with my husband for about a year. It was so hard that I couldn't live with my husband. After a lot of thought, I suggested selling the house, dividing it into half and half, and getting married in a small way. My husband readily agreed that he wanted the money. After discussing with my husband, I decided to give the small piece of land that I inherited after my father's death to my daughter. But one day, three years later, my husband contacted me out of the blue. He said he had cancer and told him to fulfill his supporting responsibilities as a spouse. The moment I heard about it, I decided to divorce. The husband says he has little money left to share three years ago and insists that the land he gave to his daughter should also be included in the property division. It's incredible. How should I respond?

◇ Lawyer Cho In-seop (hereinafter referred to as Cho In-seop): If you look at the story of "Attorney Cho In-seop's Counseling Center"... I don't think you were married properly. How did you like it?

◆ Lawyer Cho Yoon-yong (hereinafter referred to as Cho Yoon-yong):

◇ These days... A lot of people do that, right? Have you ever consulted about graduation marriage?

◆ Cho Yoon-yong:

◇ Cho In-seop: You and the other party already decided to get married three years ago, so can't we say that this has led to an agreement on the division of the property? Also, should I be responsible for support between couples as the other party claims?

◆ Cho Yoon-yong: With the recent popularity of the concept of marriage, it seems like marriage is accepted by the public as one of the official systems similar to divorce, but in fact, marriage is just an agreement between a couple and separation, not a system that creates legal effects on marriage. Even if the parties agreed to a first marriage, they remain legally married, and it is a legal marriage spouse's relationship. Therefore, even if you get married early, you may have to bear the minimum obligation to support each other. Articles 826 (1) and 833 of the Civil Code stipulate mutual support obligations between couples, and ensure that the life of the person to be supported is the same as that of the person to be supported. As a result, even if you and the other party have been married and separated for three years, you are still a legal couple, so if the other party is suffering from cancer, there is room for you to bear some support obligations. On the other hand, even if you agreed to organize your property while you decided to get married, your marriage is legally maintained, so even if you decide on the division of property, it is a property division agreement made during the marriage and has no legal effect. Therefore, if you formally divorce the other party, it is not a strict division of property to share the property while getting married, so if the other party disputes it, the division of property will have to be re-determined. However, in case of a late marriage, the details of the parties' property reorganization or actual implementation can be used as an important reference in divorce and property division litigation.

◇ Cho In-seop: The plaintiff and the defendant shared half and half the price for the disposal of the house at the time when they decided to get married and started separating, and the sender later used it for the purpose of transferring foreign university tuition and reimbursing students to his daughter, and the other party used it for the purchase of a new residence. Will these circumstances be reflected in the divorce property division? Also, is the land that you inherited and donated to your daughter subject to property division?

◆ Cho Yoon-yong: As mentioned earlier, the property reorganization at the time of the first marriage is not strictly the property division, but if you divorce later, the property division will be decided at the time. In principle, the property and amount subject to division shall be determined based on the date of the conclusion of the factual hearing in the divorce proceedings. However, if there is a change in the property relationship between the conclusion of the pleading after the breakdown of the marriage relationship, the property changed during separation may be excluded from the property division if there are special circumstances that the change is due to later circumstances and is not related to the property relationship formed jointly during the marriage. However, in the case of the story, it is difficult to conclude that the marriage relationship clearly broke down at the time of sharing the price for disposal of the house, and it is difficult to regard it as having nothing to do with the property relationship formed jointly during the marriage, such as using the disposal price to repay the child's tuition and student loans. As a result, it is likely that the property division will be decided again for the property held by you and the other party at the time of filing, but the fact that you have actually made a single income throughout your life and received considerable support from your parents can be judged in favor of you in terms of the division ratio. On the other hand, the other party is also taking issue with the inherited property of the person who gave it to his daughter at the time of his/her first marriage, but the land that he/she inherited from his/her parents and gave to his/her daughter under agreement with the other party was transferred by agreement with the other party at the time of the separation, and since he/she does not currently own the above land, it is highly likely to be excluded from the division.

◇ Cho In-seop: You suffered from forced sexual intercourse by the other person during your marriage, is there any way for you to receive relief from your rights, such as criminal punishment or alimony?

◆ Cho Yoon-yong: You suffered from unwanted sexual intercourse by the other person, especially when you lived in Australia, and forced sexual intercourse by the other person using violence remains a huge scar. Although it is an essential part of marriage, it should be agreed upon. Unilaterally forcing a spouse to have sex, like the other person, is a clear violation of an individual's right to sexual self-determination, and furthermore, sexual intercourse by assault can result in rape, even between couples. Regarding the establishment of rape between couples, the Supreme Court explicitly admitted the establishment of rape between couples, saying, "Even if the marital relationship is actually maintained, if the husband commits assault or threats that make it impossible or remarkably difficult to rebel, the crime of rape should be considered." In fact, sexual assault between couples was recognized and punished the husband for rape. In addition, it can be a reason for alimony in case of divorce as well as criminal punishment. However, the story has already happened a long time ago, so in the case of criminal punishment, there may be a problem with the completion of the statute of limitations first, and there is a high possibility that there is no clear evidence left because it is covert in the home, so it will eventually lead to a problem of proof.

◇ Jo In-seop: Now, to summarize what we've done so far... Since graduation marriage is a separate state with no legal effect, there is a duty to support, and the division of property will likely have to be discussed again when divorcing. The property division after the first marriage is related to the property relationship formed during the marriage, and the land you gave to your daughter is likely to be excluded from the division. Because of her husband's forced sexual intercourse, you can seek criminal punishment and compensation in case of divorce, but you may have difficulties with the statute of limitations and proof. So far, I've been with lawyer Cho Yoon-yong.

◆ Cho Yoon-yong:

◇ 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.