CAN YOU GET A DIVORCE FROM A HUSBAND WHO IS ABSENT OR MISSING?

Table of Contents

1. Conditions for declaring a person missing

2. Jurisdiction to resolve divorce with a husband who has absconded or gone missing

3. Divorce records for missing persons

4. How are assets resolved?

1. Conditions for declaring a person missing

According to Clause 1, Article 68 of the 2015 Civil Code, the Court shall declare a person missing when the following conditions are met:

“1. Where a person has disappeared for two consecutive years or longer and there is no reliable information on whether such person is alive or dead although all notification and search measures have been applied in accordance with the law on civil proceedings, the court may, at the request of a person with related rights or interests, declare that such person is missing.

The two year period shall commence from the date of the last information regarding such person. If the date of the last information is not able to be determined, the two year period shall commence from the first day of the month following the month of the last information. If the day or month of the last information is not able to be determined, the period shall commence from the first day of the year following the year of the last information.”

2. Authority to resolve divorce with a husband who has fled or gone missing

According to Clause 2, Article 68 of the 2015 Civil Code, it is stipulated: “Where the wife or husband of a person who has been declared missing applies for divorce, a court shall grant the divorce in accordance with the law on marriage and family.”

The Court’s authority to resolve divorce disputes is stipulated in Point a, Clause 1, Article 39 of the 2015 Civil Procedure Code:

“1. Territorial jurisdiction of Courts to settle civil lawsuits shall be determined as follows:

a) The Courts of the localities where the defendants reside or work, applicable to defendants being individuals, or where the defendants are headquartered, applicable to defendants being agencies or organizations, shall have the jurisdiction to settle according to first-instance procedures for civil, marriage- and family-related, business, trade or labor disputes prescribed in Articles 26, 28, 30 and 32 of this Code.”

In addition, in cases where the defendant’s place of residence is unknown, the Court’s jurisdiction is based on the choice of the plaintiff or the applicant as prescribed in Point a, Clause 1, Article 40 of the 2015 Civil Procedure Code:

“1. The plaintiffs shall have the right to select Courts for resolution of civil, marriage and family-related, business, trade or labor disputes in the following cases:

a) If the plaintiff does not know where the defendant resides or works or where his/her headoffice is located, the plaintiff may petition the Courts of the area where the defendant last resides or works or where the head-office of the defendant is last located or where the defendant’ properties are located to settle the case;”

3. Divorce records with missing persons

– Divorce application

– Court decision declaring the husband or wife missing

– Marriage registration certificate (original)

– Identity card or passport of the husband and wife (certified copy)

– Birth certificate of the children (certified copy)

– Copy of permanent or temporary residence registration of the husband and wife.

– Documents on joint property of the husband and wife: Certificate of land use rights, house ownership, vehicle registration, savings book, etc.

4. How is property resolved?

Pursuant to Article 69 of the 2015 Civil Code, which stipulates the management of the property of a person declared missing:

“Article 69. Management of property of persons declared missing

The person currently managing the property of a person absent from his or her place of residence in accordance with the provisions in article 65 of this Code shall continue to do so when the absent person is declared missing by a court, and such person has the rights and obligations provided in articles 66 and 67 of this Code.

Where a court resolves a divorce for the husband or wife of a person who has been declared missing, the property of the missing person shall be handed over to the adult children or to the parents of the missing person for management. If there is no such person, the property shall be handed over to a relative of the missing person for management; and if there is no relative, the court shall appoint another person to manage the property.”