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An Opinion on the Introduction of No-fault Divorce System: Is the Introduction of Harshness Clauses and a Post-divorce Maintenance System Necessary?

In 2015, the Supreme Court ruled that the change of the current fault-based divorce system to the no-fault divorce system cannot be allowed in the absence of complementary measures to protect the weak, such as harshness clauses or post-divorce maintenance, adhering to the position that the fault-based divorce system is also necessary to protect the marriage system. This paper aims to argue that the ruling is incorrect through a comparative legal study of the divorce systems in Germany, France and the United Kingdom. Following the grand political strife, Germany introduced a no-fault divorce policy in 1976, France in 1975, and the UK in 1973, with harshness clauses and strengthened post- divorce maintenance in the form of lifetime regular payments as a compromise, however, the former was rarely used and was eventually abolished in France and the UK, while the latter led to a steep decline in the marriage rate and was replaced with a weakened post-divorce maintenance system in the form of a lump sum payment. Moreover, statistics have found that the no-fault divorce system does not increase the divorce rate. In Korea, the doctrine of abuse of rights under Article 2 of the Korean Civil Act can serve as harshness clauses, and the property division system can effectively handle the post-divorce maintenance. Therefore, we no longer need to hesitate to transition to a no-fault divorce system.