Husband seeks divorce after 5-year separation — but can wife sue his new partner?

A woman who discovered her husband — after five years of separation — had begun dating someone new is asking whether she can sue the other woman, even though she says she does not want a divorce.

The case was featured Thursday on YTN Radio's "Attorney Jo In-seop's Counseling Room." The listener, identified as A, raised three children while holding down a job, only to find herself pressured to divorce after her husband walked out.

According to A, she married in 1999 and worked a dual-income household while raising two sons and a late-born daughter. Most of the housework and child-rearing fell to her.

"My husband never once helped the kids with their homework, yet he constantly complained that the house was messy or that the banchan wasn't good enough," A said. "Taking care of all the family events on his side was also entirely my responsibility."

The marriage reached a breaking point during the Lunar New Year holiday in 2020. A had wanted to visit her own family after a trip to her in-laws, but her husband grew angry and refused. After an argument, she took the children and went without him. When she returned home, he had packed his bags and left. Shortly afterward, he rented an officetel and began living separately.

"My youngest daughter was in middle school. I had absolutely no intention of breaking up the family," A said. "Out of desperation, I went to his workplace several times to try to talk, but he was cold — he told me not to come back unless I was there to agree to a divorce."

Five years passed. A then heard from her children that their father appeared to be seeing someone. When she checked his social media, she found posts showing him traveling frequently with another woman. When she confronted him, he said, "We've been living apart for more than five years — how is that an affair? Let's just get divorced." Her husband, promoted to an executive position two years ago and with a sharply higher income since, told her that money earned during the separation had nothing to do with her and that he would divide assets based on what existed as of 2020.

"I still don't want a divorce, but I can't just stand by while my husband lives with another woman," A said, asking whether she could still file a third-party interference lawsuit under the circumstances.

Attorney Jo Yun-yong of law firm Shinsegae-ro, who reviewed the case, said the central question would be whether the marriage had effectively broken down during the separation. "Given that A actively tried to save the marriage — going to his workplace to persuade him — it would be hard to conclude that the marriage was completely broken simply because the husband unilaterally left and never came back," he said.

He added that if the marriage is not deemed to have fully broken down, a lawsuit against the woman currently living with the husband could still result in some degree of liability being recognized.

However, he cautioned that if the prolonged separation meant A had in effect acquiesced to it, and there was an implicit understanding between the couple that the marriage had collapsed even without a formal divorce, then the husband's relationship with another woman during that period would not be considered the cause of the breakdown — making it difficult to hold the other party liable.

On asset division, he said that if the start of the separation is treated as the point of marital breakdown, assets accumulated after that date could not be included in the division. "However, in a case like this one, where there was a long separation but it is unclear whether the marriage had already broken down at the time it began, the point at which the husband formally files for divorce — making the breakdown explicit — could be treated as the date of breakdown," he said.

He added, however, that if A's actual contribution to building the couple's assets during the separation was minimal, her share of the division could be set at a lower ratio.