Compensation Paid for Drinking and Assault... Should Exclude Divorce Alimony

If a husband agrees to pay consolation money to his wife in case he drinks alcohol or commits assault, and agrees to pay 100 million won if such behavior leads to the breakdown of the family, and actually pays the money, can this amount affect the alimony in a divorce case? The court ruled that alimony cannot be claimed in excess of the amount.

Husband Mr. A and wife Ms. B married in March 2001 and were raising two children. From the early days of their marriage, Ms. B suffered due to Mr. A's frequent drinking, verbal abuse, and assault. Conflicts between the couple deepened due to failed real estate investments.

In April 2015, Ms. B filed for divorce citing Mr. A's fault. During the divorce proceedings, they drafted a settlement agreement in which Mr. A agreed to pay consolation money to Ms. B for his past drinking, verbal abuse, assault, and infidelity, and they withdrew the lawsuit. The agreement also included a clause that if Mr. A's drinking, assault, or infidelity caused the family to break down in the future, he would pay 100 million won.

Mr. A continued drinking and staying out overnight, and in July 2019, he caused a disturbance at home and was arrested by the police. The court also issued temporary orders for him to leave Ms. B's residence and prohibited him from approaching within 100 meters of Ms. B's workplace. In December 2019, Mr. A left the house where he lived with Ms. B and began living separately, and the following year he applied for mediation regarding divorce and property division against Ms. B. Ms. B filed a counterclaim.

Meanwhile, in April 2020, Ms. B filed a civil lawsuit against Mr. A demanding payment of about 179 million won in consolation money and 100 million won in agreed money according to their agreement. At that time, the court ruled that 140 million won of the consolation money was settled by attributing Mr. A's real estate lease contract refund claim to Ms. B, and ordered payment of the remaining amount. This ruling was upheld by the Supreme Court, and Mr. A paid Ms. B about 175 million won.

In the subsequent divorce and property division case, the first trial court ordered Mr. A to pay Ms. B 15 million won in alimony.

However, the appellate court overturned the first trial's decision. The Family Division 2 of the Seoul High Court (Presiding Judge Kim Si-cheol, Judges Kim Ok-gon and Lee Dong-hyun) recently ruled that Mr. A does not have to pay alimony to Ms. B. Since the civil lawsuit filed by Ms. B against Mr. A for consolation money and agreed money was finalized, and Mr. A paid the civil judgment amount of about 175 million won, this fact should be considered in the alimony decision in the divorce case.

The court stated, "An agreement was reached during the filing and withdrawal of the previous divorce lawsuit, and Ms. B filed a civil lawsuit demanding payment of consolation money and agreed money from Mr. A. The civil lawsuit ruling was based on the validity of their agreement, and the grounds for the breakdown of the marriage do not exceed the scope of reasons for payment of consolation money and agreed money."

In particular, the court judged that the consolation money and the agreed amount of 100 million won paid by Mr. A correspond to the predetermined damages stipulated in the Civil Act. Article 398 of the Civil Act allows for predetermined damages for breach of contract. According to Supreme Court precedents, special circumstances must be claimed and proven for the agreed amount to be interpreted as a penalty.

The court explained, "The consolation money agreed upon by the two corresponds to damages for Mr. A's fault that occurred before the agreement was established, and the agreed amount of 100 million won corresponds to predetermined civil damages for Mr. A's fault occurring after the agreement was established. Therefore, alimony exceeding this amount cannot be claimed."

It added, "There are no special circumstances or evidence to consider the agreed amount as a penalty, and according to Supreme Court precedents, it corresponds to predetermined damages. Since the civil judgment was finalized and Mr. A fully paid it, Ms. B cannot claim alimony exceeding the amount confirmed in the civil judgment."

Reporter Han Su-hyun, Legal Newspaper

※This article was written based on content provided by the Legal Newspaper.

※This article is based on content supplied by Law Times.