Case of Presumption of Biological Child for a Foreign Born Child. 2008Reu2020, 3283

The Plaintiff (Husband) and the Defendant (Wife) married in 2004. The Defendant, initially from China, went to China on December 25, 2006 without informing the Plaintiff. The Defendant returned to the Republic of Korea on January 10, 2007 but lived with a friend rather than the Plaintiff. In March 2007, the Defendant discovered she was pregnant but did not inform her husband. The Defendant gave birth to the child in Hong Kong on August 12, 2007. After giving birth, the Defendant notified the Plaintiff that a Hong Kong birth certificate requires the father’s signature. The Plaintiff proceeded to travel to Hong Kong and signed the certificate. The Defendant-wife returned to Korea in September 2007 and proceeded to live with a friend. The Defendant attempted to keep in contact with the Plaintiff but the Plaintiff refused to maintain such contact. The Plaintiff proceeded to file a divorce claim in February 2008, alleging that “from December 2006, the contact with the Defendant was completely cut off.” The Defendant countered with her own divorce claim. The Seoul Family Court dismissed the Plaintiff’s divorce claim but upheld the Defendant’s claim, finding that the fundamental breakdown of the marriage lied with the Plaintiff. While the court noted that the Defendant was also to blame, the court emphasized the fact that the Defendant attempted to initiate contact with the Plaintiff after giving birth to their child but the Plaintiff refused to make any such effort in restoring the relationship. Thus, the court ordered the Plaintiff to pay the Defendant three million won as compensation with a five percent interest rate per annum under the Civil Act. Additionally, the court ordered the Plaintiff to pay 400,000 won per month in future child rearing expenses, despite the fact that the Plaintiff was not registered as the child’s father in the Republic of Korea’s family registry. Citing Article 844 (1) of the Civil Act, the court held that there is a presumption that the wife’s husband is the father when the wife gives birth during the marriage. In determining the amount of child rearing expenses, the court considered the age and rearing condition of the child, the age and occupation of the Plaintiff and the Defendant, as well as other circumstances.



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