Contribution as a Criterion for Determining Marital Property Subject to Division - Focusing on Indirect, Active, and Unlawful Contributions -

The Supreme Court of Korea has repeatedly held that even if certain property is classified as one spouse’s separate property, it may still be subject to division if “the other spouse actively contributed to the preservation or increase of such property” or if “the acquisition and maintenance of the property involved direct or indirect contributions such as household labor by the other spouse.” Based on these holdings, the lower courts have tended to include all assets held in either spouse’s name in the divisible marital estate in case of a marriage that has been maintained over a substantial period of time. However, this judicial practice runs counter to the principle of separation of property between spouses and significantly undermines the predictability of the outcome of property division. Thus, this article seeks to propose a set of standards for determining the property subject to division, by categorizing various types of contributions. The conclusions reached through this analysis are as follows. First, even if property qualifies as a spouse’s separate property, it may be subject to division if the other spouse made a direct contribution to its acquisition, preservation, or appreciation in value, such as through monetary or in-kind contributions. However, this does not apply where such direct contribution constitutes an unlawful cause. Second, even in the absence of direct contribution, where there has been indirect contribution through household labor etc., separate property and any appreciation thereof that is related to the joint life of the marriage may be subject to division. Conversely, separate property and its appreciation that bear no relation to the marital joint life shall not be subject to division, even where indirect contributions have been made—except in cases where the other spouse's contribution amounts to a special contribution or sacrifice. Third, the relevance of the property to the joint life of the marriage shall be assessed based on various factors, including the objective nature of the acquisition title, the interaction between the spouses in the course of property management, the method and extent of cost-sharing between the spouses, the duration of the marriage, the timing of acquisition, etc. Fourth, even if certain separate property is not subject to distributive property division, it may nonetheless be subject to division for support purposes, where it is necessary for the maintenance of the other spouse.