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Korea: Sex During Divorce


Korea's top court has ruled that sexual relations outside marriage committed during consensual divorce proceedings was not a criminal act (2008).

Under current Korean law, adulterous relations are considered a criminal act and those found guilty can receive jail sentences of up to two years. The Supreme Court overruled a lower court's conviction of a 57-year-old married man identified as Chung, who was indicted without physical detention on charges of having an extramarital affair with a barmaid in April 2007, returning the case to an appellate court for retrial.

This ruling indicates that married people undergoing divorce have no legal obstacle to having sexual relations with others. The court ruling stated: "If it is clear that the couple had no intention of continuing their married life, having sex with another person does not violate the Adultery Law since their decision can be translated into a tacit agreement for both sides to have sex with new partners."

Chung filed a divorce lawsuit in early 2007 to end his 25-year-long marriage. Prior to the legal step, Chung and his wife reached an agreement on divorce but decided to live separately for a while to resolve pending disputes over division of property and monetary assets. Chung's wife laid charges against him after learning he had sexual intercourse with a female bar worker. Chung and the hostess were sentenced to six months in prison suspended for two years by a provincial court, a ruling upheld by an appellate court.

In the meantime, the Constitutional Court is now reviewing whether the Adultery Law is constitutional or not. In February, a famous actress, Ok So-ri, asked the court to rule the law unconstitutional, alleging it infringes upon people's rights to have sex with whom they want to. The nine-member court said it would rule on the case in the near future. The court has already ruled three times in favor of the law, the last time in 2001. Each year, more than 1,200 people are indicted under the law. In 2006 alone, 11,244 couples here fought over divorce in court because of infidelity. In 39.7 percent of those cases, it was the husband accusing the wife, up 3.5 percentage points from 1999.

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