Couple Divorced Due to Husband's Infidelity...Validity of Prenuptial Agreement Waiving Property Division?

'Waiver of Property Division' Premarital Agreement: Legal Validity?
Husband's Infidelity in 3rd Year of Marriage... Property Division Claim Possible
Expert: "Alimony Claim Also Possible Due to Infidelity Responsibility"

A story has been shared about a woman who wrote a prenuptial agreement stating she would not claim property division before marriage, only to discover her husband’s infidelity. Photo unrelated to the article. Getty Images

Is a prenuptial agreement stating that "the wife waives the claim for property division" valid in cases of divorce due to the husband's infidelity? Experts have opined that since marital property agreements can only be made regarding property acquired during the marriage, "agreements concerning property owned before marriage have no legal effect."

On the 22nd, YTN Radio's "Attorney Jo In-seop's Counseling Center" featured the story of Ms. A, a woman married for seven years. Ms. A revealed that her husband particularly disliked losing out. Even during their dating period, Ms. A wanted to alternate paying for dates, but her husband always insisted on splitting the costs exactly in half. They even took turns escorting each other home after dates.

The husband's calculative nature was largely influenced by his mother, who started from a small street stall and became a master in the dining industry. When Ms. A and her husband got married, the mother-in-law made them draft a prenuptial agreement that included a clause waiving claims for property division in case of divorce. The husband agreed, saying, "Mother is wise as always," and "We should prepare just in case we get divorced."

However, around their third year of marriage, Ms. A discovered her husband's affair. Deciding to divorce, she sought advice, saying, "I'm worried about the prenuptial agreement," and asked, "Do I have to waive my claim for property division as stated in the agreement?"

Attorney: "No Legal Effect... Claims for Alimony Beyond Property Division Are Also Possible"

Attorney Jo In-seop (Shinsegae Law Firm) explained, "A prenuptial agreement is a document outlining agreements on property, household duties, childcare, etc., made before marriage registration. Except for acts against the essential meaning of marriage, gender equality principles, or public order, parties are free to decide. It mainly concerns alimony, property division, and child custody in case of divorce." He added, "To recognize the validity of a marital property agreement, it must be registered before marriage registration. Since marital property agreements can only be made regarding property acquired during the marriage, agreements on alimony or child custody, or on property before marriage or after divorce, have no legal effect."

Attorney Jo stated, "The Supreme Court holds that marital property agreements waiving claims such as property division, custody, or inheritance rights are not permissible. Therefore, the marital property agreement Ms. A signed has no legal effect, and she can claim property division upon divorce. Since the husband’s infidelity clearly makes him responsible for the divorce, she can also separately claim alimony."