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Same-sex marriage: Pandora's box ready to open?
By Lee Dong-wook
June 25, 2003
For a long time, Korean society has been very reluctant to recognize same-sex
marriage. As I once mentioned in a previous article “Homosexual Marriage in
Korean Legal System. (March 3rd, 2003, Thoughts of the Times), Korea’s
Constitution and Civil Code do not specifically say whether if a marriage can
be entered into by same-sex couples. Korea at the moment does not have some
laws like the Defense of Marriage Act (DOMA) of the United States. In the DOMA,
which passed by a vote of 85-14 in October 1996, the U.S. congress specified
that marriage is the union of a man and a woman and that the term "spouse"
refers only to a person of the opposite sex. The DOMA also specifies that
states are not required to recognize same-sex marriages just because other
states recognized them. Instead, the Korean legal system has the concepts of
"common law marriage," "void marriage" and "avoidable marriage." Common law
marriage is a marriage based on actual married life. The Korean legal circles
more often refer to it as "marriage by court ruling."
Over the weekend, the Seoul High Court delivered a ruling to a same-sex couple
over how to divide the marital assets when the two parties decided to part ways
after a 21-year cohabitation. As Korea does not have a legal reporting system
like the United States, I could not read the whole court ruling. Instead I had
to read Korean media reports on the Internet. According to a local newspaper, a
lawsuit was raised by a woman against her same-sex partner. They lived together
for more than 21 years but all the marital assets were registered under the
name of the defendant. They ran a business and accumulated about one billion
won over the cohabitation period. When the relationship went sour, the
plaintiff asked for her fair share of the assets based on restitution and
marriage. She alleged there had been a regular sexual relationship between the
two and she deserved half of the marital assets.
Justice Sohn of the Seoul High Court reportedly ordered arbitration for this
case. The court ruled that there existed a cohabitation relationship between
the two parties "somewhat similar to a common law marriage," although there
were arguments about whether it was a same-sex marriage. Thus, according to the
dissolution of a seemingly common-law marriage, the court ordered the defendant
to pay 70 million won to the plaintiff. Unless either party appeals the issue
to a the Supreme Court of Korea, this order will take effect.
By this court ruling, the Korean judiciary recognized for the first time the
concept of cohabitation similar to a common law marriage and ruled that
division of marital assets is possible under such circumstances. From this
moment on, homosexual couples will be able to ask for their fair share of
marital assets only if "cohabitation similar to a common law marriage" can be
proven. The Korean legal system has recognized the right to share marital
assets only to couples who went through divorce proceedings. In addition, only
with circumstantial evidence can the existence of a common law marriage be
proven.
Although we can hardly say the Korean Judiciary completely recognized
homosexual rights, there is no doubt that this is a big step toward greater
human rights for homosexuals in Korea. As to the issue of homosexual rights,
Korea will very soon face the same questions the United States has. Many
advocates of homosexual rights in the United States love to draw analogies from
Loving v. Virginia, the first interracial case about a marriage between a black
and white couple.
They say just as a interracial marriage is not a marriage between a robin and a
pigeon, neither is marriage between a same-sex couple. And they claim that all
homosexual couples deserve equal benefits and welfare granted to couples in
traditional marriage.
As a straight Korean student who studied U.S. family law last semester and who
is doing a summer internship at a U.S. family court, I believe the following
issues are worth mentioning.
- What if one spouse in a same-sex marriage physically abuses their partner?
Can we equally treat this like a wife beating in a traditional marriage?
- What if one spouse in a same-sex marriage commits adultery with a member of
the opposite sex? Can we allow the remaining spouse to sue their partner for
adultery?
- What if one spouse in a homosexual marriage rapes their partner? Can we
equally treat it like a marital rape?
To all of the above questions, I do not think Korean society is ready to
answer. If I say we have to slow down a little and we have to think through all
the consequences of recognizing same-sex marriage since Korean society is not
ready to open Pandora’s box yet, would I appear too conservative?
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