Marital property

Marital property (법정재산제/法定財産制) is a rule under the Korean family law that decides the ownership and distribution of the property between spouses during and after marriage.

Some jurisdictions allow spouses to decide the ownership and distribution of their properies on a contractual basis. Prenuptial agreement (부부재산계약/夫婦財産契約), or marital agreement on property, is rarely used in Korea.

The Civil Act acknowledges the prenuptial agreement in principle. If such prenuptial agreement has not executed or incomplete, the marital property rule on separate property (특유재산/特有財産) and joint property (공유재산/共有財産) applies.

Key words
prenuptial agreement, marital property, separate property, joint property, presumption of title

Statutory ground
Article 829 (Agreement and its Alteration on Matrimonial Property) of the Civil Act
 * (1) If husband and wife have not, prior to the formation of marriage, entered into a contract which provides otherwise with respect to their property, their property relation shall be governed by the provision of each Article of this Sub-Section (Effect of Marriage on Property).
 * (2) If husband and wife have, prior to the formation of marriage, entered into a contract with respect to their property, such contract may not be altered during the marriage: Provided, That if there is a due reason to alter such contract, it may be altered upon approval of the court.
 * (3) If, in a case where one spouse manages the property of the other in accordance with the contract referred to in paragraph (2), and such property is imperiled by mismanagement, the other spouse may claim to the court for permission of its own management. In this case, if such property is common property between husband and wife, the other spouse may claim to the court for the division of such property.
 * (4) If husband and wife have entered into a contract regarding their property, such contract may not be enforced against a successor in title of the husband or wife or a third party unless it is registered prior to the formation of their marriage.
 * (5) If the manager has been changed or a division of property in coownership has been effected in accordance with paragraphs (2) and (3) or by a contract, such change or division may not be enforced against a successor in title of the husband or wife or against a third party unless it has been registered.

Article 830 (Peculiar Property and Property of which Title is Uncertain)
 * (1) Inherent property belonging to either husband or wife from the time before the marriage and property acquired during the marriage in his or her own name shall constitute his or her peculiar property.
 * (2) Any property, of which title is uncertain between the husband and wife, shall be presumed to be in their co-ownership. 

Article 831 (Management, etc. of Peculiar Property)
 * Husband or wife shall separately manage, use and take profit from his or her peculiar property.

Article 832 (Joint Liability for Obligations with respect to Home Affairs)
 * If, with respect to normal home affairs, one spouse has effected a juristic act with a third person, the other spouse shall be jointly and severally liable for the obligation therefrom: Provided, That this shall not apply where a previous notice, to the effect that the other spouse will not assume such liability, has been clearly given to the third person.

Article 833 (Living Expenses)
 * The expenses necessary for communal life of husband and wife shall be jointly and severally borne by them, unless a special stipulation has been made between them.
 * [This Article Wholly Amended by Act No. 4199, Jan. 13, 1990]

Separate property
Any property that one spouse had before marriage, through wage or inheritance or bequest, are presumed to be separate property of that spouse. The owning spouse has the right to manage, use and profit from that separate property apart from the nonowning spouse.

Joint property
Any property whose ownership of which is difficult to trace are considered joint property of the couple. An example of this is the furnishings in the house.

Presumption of Title
During marriage, if one spouse acquires a title to a property, the court presumes the property to be a separate property of that spouse. This presumption is, however, rebutted if the other spouse shows that the other spouse contributed financially to the purchase of the property. In rebutting this presumption, the other spouse must show more than that the incidental or housework contribution. The contribution must be actual and substantial to rebut the presumption.