[K-Women Talk] Monogamy

Controversy Over the Right to Pursue Happiness for the At-Fault Spouse
Must Not Harm the Interests of the Other Party

Kim Kyung-sun, former Vice Minister of Gender Equality and Family

“A person who has a spouse shall not remarry” is Article 810 of the Civil Act in Korea. This provision has been explicitly stated since the enactment of the Civil Act in 1958. It is a regulation prohibiting bigamy and proclaiming monogamy. Although the institution of marriage can vary depending on the era and society as it is a fundamental system of society, the most common system in modern society is monogamy.

There are various theories regarding the origin of monogamy. Some anthropologists and evolutionists argue that unlike typical mammals, humans require a long period of child-rearing, so spouses must cooperate to raise children, increasing the chances of survival, which led to the establishment of monogamy. They cite the fact that about 90% of bird species, which also require a long time to raise their young after birth, live monogamously as evidence.

In addition, there is biological research based on experiments on two species of mice that are genetically similar but show significant differences in mating behavior, suggesting that specific hormones cause differences in mating behavior.

However, the most rational interpretation of monogamy is the theory of F. Engels, a 19th-century German philosopher and economist, who argued that monogamy as a family form emerged due to economic conditions of private ownership after the concept of private property appeared. Engels stated that since humans settled and began agricultural life, the concept of private property arose, inevitably leading to issues of inheritance of property and social status. Monogamy was the most stable system to clearly designate heirs as one’s own blood relatives.

Although human history began much earlier, the fact that monogamy has been established since the start of agricultural society about 10,000 years ago supports this theory. Since the institution of marriage is the smallest and basic unit of society?the family?regardless of its origin, it is undoubtedly a very important element for the stability and development of our society and can be considered a core norm supporting our society.

One of the contentious issues related to our basic marriage system of monogamy is whether to adopt the principle of breakdown in divorce. There are many claims that the Korean Supreme Court’s position of not recognizing the divorce petition rights of the at-fault spouse seriously infringes on the right to pursue happiness.

In this regard, the Korean Supreme Court has held that unlike Korea, many countries that adopt the principle of breakdown in divorce law only recognize judicial divorce and do not allow consensual divorce. However, in Korea, consensual divorce is possible through sincere communication and sufficient compensation to persuade the other party, so it does not infringe on the right to pursue happiness. In reality, about 80% of divorces are consensual divorces.

Article 36, Paragraph 1 of the Korean Constitution stipulates, “Marriage and family life shall be based on the dignity of the individual and the equality of the sexes and shall be maintained and protected by the State.” The provisions of the Civil Act concerning marriage exist to guarantee the constitutional value of marriage and family life, and the principles of interpretation should also be based on that constitutional value.

Should not the right to pursue happiness of the at-fault spouse also be exercised without seriously harming the interests of the other spouse or children and without significantly violating the notions of justice and fairness? I believe this should be applied fairly regardless of wealth. If the parties are members of the social elite or hold public positions, should it not be even more so? The law exists to be followed. Moreover, if it is a universal institution of humanity established before codified law, I believe it is an even more essential value to uphold.

Kim Kyung-sun, Former Vice Minister of Gender Equality and Family