During Divorce Litigation, 'Trespassing' at Wife's House... Constitutional Court Rules "Suspension of Prosecution Unjust"

Constitutional Court: "Cannot Consider Departure or Exclusion from Co-resident Status"

The Constitutional Court has ruled that the prosecution's decision to suspend indictment on the charge of trespassing against a husband who entered his wife’s house during a divorce lawsuit was unjust.

Chief Justice Yoo Nam-seok of the Constitutional Court and the constitutional justices are seated in the justices' seats of the Grand Bench at the Constitutional Court in Jongno-gu, Seoul, on the afternoon of the 26th, where the constitutional complaint case ruling is held.
[Image source=Yonhap News]

On the 3rd, the Constitutional Court announced that it unanimously canceled the suspension of indictment decision made by the Ansan Branch of the Suwon District Prosecutors’ Office against husband Mr. A.

Mr. A married his wife, Ms. B, in 2010, and from 2013, they lived separately near his workplace, spending weekends together at Ms. B’s house in Ansan, Gyeonggi Province, either weekly or biweekly, living as a weekend couple.

In June 2021, Mr. A was sued for divorce. In early August, he took a few days off and stayed at his wife’s house, but on August 18, he was denied entry.

Ms. B cited self-quarantine due to the novel coronavirus disease (COVID-19) as the reason. The police, who responded to her report, also sent Mr. A home for the same reason. Later, on September 2, Mr. A went to his wife’s house again, entered by entering the door code, but was charged with trespassing and received a suspension of indictment from the prosecution. Mr. A then filed a constitutional complaint requesting the cancellation of the decision.

The Constitutional Court canceled the prosecution’s decision, stating that "the suspension of indictment infringed upon Mr. A’s rights to equality and pursuit of happiness." The Court judged that "it is difficult to see that there was an explicit agreement that the petitioner would no longer live in the house in question, and there are no other circumstances indicating that he had withdrawn from or was excluded from the status of co-resident."

The grounds for canceling the suspension of indictment included the fact that Mr. A knew the entry code, had many personal belongings inside the house, had lived as a weekend couple for a long time, and although the house was owned by his wife, Mr. A bore most of the living expenses.