Children-Centered Divorce Ground

This paper is to rethink the conflicts between parent's freedom to divorce and the children's best interest, especially in divorce procedure regardless of divorce ground, fault-based or no-fault(as a general rule). It also introduces legal protection for the interest of the children during and after the parents' divorce procedure. It concludes that the children's interests should be taken into a serious consideration as a divorce-determining factor. The children-centered approach in the divorce process might also consider the best interest of parents who have contributed to care children. Because focusing on who is the guilty spouse - in fault base, and whether marriage itself is broken down or not in no-fault divorce, are the adult-centered principles, they result in serious problems both for parents and children. Husbands and wives are in struggles to find out the other spouse guilty in fault-based divorces, while no-fault divorces often result poverty of divorced wives and their children. However, children-centered approach in divorce process will deliver the message that divorce is not only the parents' problem but also the children's, and that divorce is not only a private issue, but also a public one. It will make the divorcing parents to reconsider the impact of post-divorce situations, as well as their children's best interest, including the children's future. The problem of the Korean divorce rule is that there is no consideration of children's best interest in determining parents' divorce. In divorce by consent, husband and wife can easily divorce when they agree to divorce if they consent by free will, not by a threat of another party. Therefore, husband and wife may divorce easily regardless of the children's best interest. Korean government plans to reform the divorce law by consent as the procedure could have prevent from careless divorce and at the same time to let the parties devise the plan for children's protection within the consideration period. It is recommended to reform so that judge has a guardian-like intervention power for children in the procedure of divorce. In the case of judicial divorce, the determining factor for granting divorce is that who is the guilty in Korean divorce system. Children's best interest could easily be overlooked in the midst of the two adults' battle. Another problem is that judges can interpret the art. 840 on divorce ground either a fault based or no-fault. And the number of judges who interpret it as no- fault is increasing recently. In other words, Korean divorce law is changing now to the no-fault divorce ground. In that case, neither of the weak party (wife, mostly) nor children can be protected by the Korean divorce system, because no legal system can ensure their rights in the present system. This paper proposed to reform judicial divorce ground as to children's interests should be taken into a serious consideration as a divorce- determining factor.