[Smiling] The remarriage 男 of delaying marriage registration while looking at their children... "Can I inherit or divide my property?"

□ Broadcast date and time: December 23, 2024 (Mon)
□ Host: Attorney Jo In-seop
□ Starter: Attorney Lee Jun-heon

* 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): I am with lawyer Lee Jun-heon of Lawhouse Cho Dam-so for you.Hello.

◇ Lawyer Lee Jun-heon (hereinafter referred to as Lee Jun-heon): Hello, I'm lawyer Lee Jun-heon from Shinsegae Law Firm.

◆ Jo In-seop: What is today's story about?

■ DEAR READER: A few years ago, I was alone with my husband's bereavement when I met a man who was introduced to me. The man was also bereft of his wife. We grew close sharing the same sadness and started living together in my apartment about a year after we met. We used to call each other honey, but I think they were a couple. One day, I was having dinner and asked if I would register my marriage. The husband changed the topic of the conversation, saying that it is irrelevant to report the marriage slowly, so let's think about it later. My husband has two children, and he usually consults with his children to deal with everything. It seemed like he was avoiding the story of marriage registration because of his children. Then, I overheard my husband talking on the phone by accident. My husband said it wasn't about the money and that he wouldn't remarry. It seemed like he was fighting with his children because of the marriage registration. I pretended not to know for now and asked my husband that evening. My husband tried to soothe me by saying that we are already in a common-law relationship, but why are we reporting marriage uncomfortable when we can live as a couple? In fact, it is not necessary to register a marriage, but my husband who wants to comply with his children's wishes was a little disappointing. Even if my husband doesn't register his marriage, he said we are a couple, and the common-law marriage is the same as a legal couple. I wonder if what your husband says is really true.

◆ Jo In-seop: This was the story of the husband of lawyer Jo In-seop's counseling center and his wife, who is a de facto married couple. It seems that more married couples don't register their marriage separately and stay like this as a common-law, right?

◇ Lee Jun-heon: Yes, there are times when you think you don't have to register your marriage for the second time because you've already been married once. As in the story, there seem to be cases where they do not register their marriage because they are wary of their children.

◆ Cho In-seop: Yes, there are a lot. The sender is now curious about a common-law marriage. First of all, please let me know if factualism and legal marriage are really the same.

◇ Lee Jun-heon: I think you're very curious about the efficiency of the truth. A common-law marriage refers to a marriage that meets the actual requirements of marriage but does not meet the formal requirements of reporting. As the formal requirement of marriage registration has not been met, the effects of marriage on the premise of marriage registration are not recognized even if it is a factual marriage. That's why you're mistaken that common-law couples are just like legal couples.

◆ [Jo In-seop] So specifically, what's not acceptable in common-law marriages?

◇ Lee Jun-heon: Yes, the most representative thing is that there is no kinship and the right to inherit is not recognized. In addition, children born to a common-law couple become the birthplace of the marriage and follow the mother's surname. In addition, there are several differences, such as being considered adult when a minor is married, but not in common-law marriages, or being an exception to the ban on the central district. But these are cases that don't happen a lot. The most problematic thing about common-law marriage is that the aforementioned children become non-marriage-born children, and no kinship occurs and the right to inherit is not recognized.

◆ Cho In-seop: Yes, it's very big that the right to inherit is not recognized.

◇ Lee Jun-heon: Yes, in the case of extramarital affairs, if the father recognizes the extramarital person as his child, the parent-child relationship can be formed and the father's family name can be followed. There is no other way than to form a marriage registration for kinship or the recognition of inheritance rights.

◆ Cho In-seop: Yes, on the contrary, there are a lot of people saying that common-law marriages are now similar to legal marriages, but what are the points that are recognized in common-law marriages?

◇ Lee Jun-heon: The real requirements of marriage, the premise of marital cohabitation, are mostly recognized in common-law marriages. For example, duties such as the obligation to live together, support, cooperation, and chastity between couples are recognized. The couple's agency for daily household chores is also recognized. And when the common-law marriage is resolved, if either party has a reason for liability, you can claim alimony or claim property division.

◆ Cho In-seop: Yes, then we can't inherit, but we can divide the property. I think there are some people who think it's a little unusual to be divided into assets.

◇ Lee Jun-heon: The division of your property is recognized in the light of the substance of a marital life community with the meaning of liquidation of marital property, so it is also recognized in a common-law marriage. But in a way, you might think that inheritance is not the same. Some say that it is reasonable to recognize the right of inheritance in a common-law marriage because it is necessary to see the dissolution of common-law marriage and the dissolution of common-law marriage by death differently. However, our precedent has not yet recognized inheritance from common-law marriage.

◆ Cho In-seop: Yes, so in this case, can it be recognized as a common-law marriage?

◇ Lee Jun-heon: Yes, in fact, it's not clear whether a common-law marriage will be recognized in this case. As I said earlier, common-law marriage does not meet only the formal requirement of marriage registration while meeting all the practical requirements of marriage. Our Supreme Court believes that in order for a common-law marriage to be established, it is established when there is a subjective intention to marry and objectively there is an entity that can recognize marital co-living in terms of family order. According to this precedent, even if a man living with you admits that he lived together as a marriage intention, a common-law marriage is not immediately recognized. Objectively, it should be possible to see that there was a couple's reality from the outside. Looking at various precedents regarding the recognition of common-law marriage, it seems that the most important thing in determining whether there is an objective substance in marriage is whether or not the wedding was held.

◆ Cho In-seop: The most important criterion now is to judge whether or not you got married.

◇ Yes, that's right. When you have a wedding, your family and acquaintances around you announce to the outside that we are a couple. So, if you have a wedding, most of them are accepted as factual marriages. And even if it's not a wedding, it can be said that the fact that the family met or gave birth is an objective reality of marriage. But in your case, you had a wedding.Since it is not a family meeting or a family meeting, I think there is a high possibility that it will be recognized as a simple cohabitation, not a common-law marriage, if there is a dispute over whether or not it is a common-law marriage.

◆ Cho In-seop: Yes, then you have to prepare well for that. Then, to summarize the contents of the counseling so far, a common-law marriage refers to a case in which a couple does not register a marriage but actually lives as a couple. Therefore, the legal effect on the premise of marriage registration is not recognized. Representatively, in common-law marriages, kinship does not occur and inheritance rights are not recognized. In principle, children born outside of marriage follow the mother's last name. However, even in common-law marriages, the obligation to live together and support is also recognized. In the event of the dissolution of the common-law marriage, you can claim alimony or property division. But the important thing is that in common-law marriages, property division is recognized, but inheritance is not. In the case of the sender, it is a little uncertain whether a common-law marriage will be recognized, and if there is a lack of evidence such as a wedding or family meeting, there is a possibility that it may be judged as a simple cohabitation. So far, I've been with lawyer Lee Jun-hun of Shinsegae Law Firm.

◇ Thank you.

◆ Cho In-seop: You can listen to the counseling center of Cho In-seop through YouTube. If you have any questions or suggestions, please comment. You can contact Shinsegae-ro, a law firm, separately.