Liability vs. breakdown

One elderly Japanese couple carried on a happy family for 50 years. One day, the husband suffering from a stomach cancer after retirement is murdered by his wife. She said that she had killed her husband because of the bitter memory of him committing adultery 36 years ago. A Tokyo court recently gave her a suspended sentence, saying that she must have had good memories in the 50 years of memories and should not forget to appreciate such times. No matter how long ago it happened, adultery may be an unforgiveable sin to a spouse. Had the husband in question been healthy, would the wife still have chosen to divorce him and avoided killing her husband?

In Korean law, there are two kinds of divorces – an uncontested divorce and a contested one. Unlike in uncontested divorce, one can file a suit for a contested divorce only with a legitimate reason such as infidelity. Since 1965, the Korean judiciary has adopted the liability principle, rejecting most divorce suits filed by a spouse responsible for the family breakdown, while countries like the U.S., Japan and Germany adopted the principles of matrimonial breakdown, acknowledging divorce suits without asking who is responsible.

Korea`s Supreme Court held a public hearing en banc on a case of whether to allow an infidel spouse to divorce his or her spouse. The suit was filed by a husband who cohabited with another woman and had children against his legal wife. Woman lawyers had heated court debates over whether to shift from the principle of liability to one of matrimonial breakdown. One argued that sticking to the liability principle would only nurture hatred between the husband and the wife, while the other insisted that the law should not allow an infidel spouse responsible for the breakdown of the marriage to abuse the right to be liberated from the marriage than had gone awry.

The liability principle has contributed to preventing husbands from unilaterally kicking out their wives. These days, some people argue that the principle is used to protect husbands in their 50s and 60s, who devoted themselves to work to support their families only to face their wives demand a divorce. I wonder how much longer the liability principle that had been maintained for half a century will be able to fend off the tough challenge from the breakdown principle.

mskoh119@donga.com