Woman who had affair and child abroad seeks divorce after nearly 10 years of separation

Can a woman who had an affair and gave birth to another man's child while living abroad seek a divorce from a husband she has been separated from for nearly a decade?

A woman identified only as A appeared Wednesday on YTN Radio's legal advice program "Jo In-seop's Counseling Office" to seek guidance on divorce and child support.

A said she first met her husband at the veterinary clinic where she worked as a staff veterinarian, when he brought in his dog for treatment. The two grew close through their consultations, began dating and eventually married, going on to have two daughters.

The couple experienced conflict stemming from differences in personality. A tended to analyze problems and seek solutions when difficulties arose, while her husband placed greater value on empathy and emotional support.

A then began planning to send her children to Australia for early English education. Her younger sibling was already living there at the time.

Her husband agreed that the children should receive English education but opposed being left behind in South Korea as what is commonly called a "goose father" — a term for fathers who remain in Korea while their families live abroad. The couple argued repeatedly over the issue and ultimately agreed to "endure it for two or three years for the children's sake," after which A and their two daughters left for Australia.

As the separation dragged on, the marriage deteriorated sharply. Amid recurring conflict, A entered into a relationship with another man she had met in Australia and ultimately gave birth to his child.

When her husband learned of this, he was furious, and the marriage became in effect irreparable.

After returning to South Korea a few years later, A said she repeatedly tried to speak with her husband but was turned away each time. On one occasion she went to his home, only to be reported to police. She was subsequently issued a restraining order and fined for trespassing.

About five more years passed, and both daughters reached adulthood. A said she and her husband had been living essentially as strangers for close to 10 years and that she now wanted to formally end the marriage.

Her husband, however, still refuses to agree to a divorce.

"I know the breakdown of the marriage is entirely my fault," A said. "I'm wondering whether it is legally impossible for me to file for divorce first, given that I had another man's child and have been separated from my husband for nearly 10 years."

She also asked whether she could claim spousal support and back child support for the period of separation, during which she said she received no support from her husband.

Attorney Kim Su-jin said that under the general rule, A would be considered the at-fault spouse, making a divorce petition difficult.

"Having an extramarital relationship and giving birth to a child outside the marriage constitutes 'improper conduct' under the Civil Act, so a divorce petition is in principle not permitted," Kim said.

However, Kim said exceptional circumstances could allow a petition to succeed — if considerable time had passed since the marriage effectively broke down, the children had all reached adulthood, and the long separation suggested the degree of fault had been diluted.

Kim particularly noted that the husband had refused all communication and had gone so far as to seek a restraining order and file a criminal complaint.

"If it can be shown that the other party is refusing divorce not out of a genuine desire to preserve the marriage but out of stubbornness or a desire for revenge, then the petitioner's divorce claim would likely be accepted," Kim said.

Kim added that claims for property division, spousal support and back child support were also possible.

"Even the at-fault spouse can seek a division of assets accumulated during the marriage," Kim said. "Spousal support for the period of separation can also be claimed, though the degree of responsibility for the breakdown of the marriage may affect the amount awarded."

Back child support for the couple's children could likewise be claimed regardless of fault, Kim said.

However, child support for the child born outside the marriage is a separate matter. "Child support for a child born from an extramarital relationship must be claimed separately against that child's biological father," Kim added.