혼인 및 이혼절차에서의 능력과 후견

The Korean Civil Code provides for a minimum marrying age of 18. Marriageand divorce law presumes that adult have sufficient mental capacity to getmarried and to divorce. In spite of this presumption, the mentally ill shouldhave the natural capacity to exercise a judgment and express that he orshe wants to get or end the marriage. The Korean Supreme Court decidedthat if spouse did not have the capacity to judge and express like persistentvegetative state, the court could take into consideration the potentialpossibility of the intention to get married or to divorce in suit. The capacity to get married or divorce is not expected to be high becauseof the protection for freedom of marriage. The spouse under guardianshipcan decide marriage and divorce with the consent of guardian. Guardiancan not make a decision to get married or divorce on behalf of ward buthas a right to sue for a divorce. This study focuses on legal incapacity in marriage and divorce proceedingsin terms of the self-determination right of the incapacitated on marriage. This study suggest that guardian or special representative should respectexplicit or presumptive will and desire of the incapacitated in spite of theCivil Procedural Code which authorize the filing of marriage annulment ordivorce action by guardian or special representative.