이른바 ‘사실상 이혼’에 대한 소고

According to the Korean Supreme Court, de facto marriage of bigamy is protected when civil marriage is in de facto divorce. However, there is no provision for de facto divorce in Civil Act of Korea. For that reason, it is not clear about requirement and legal effect of de facto divorce. First, so-called “de facto divorce” is requested a period of separation and mutual consent to divorce. Mutual consent to divorce must stand up without withdrawing. According to the point of the other view, mutual consent to divorce is not required because the marriage has already broken. However, it is necessary because fault-grounds divorce principle is adopted in Korea. Actually, legal divorce needs report of divorce, thus de facto divorce without report of divorce is not applied the effect of divorce but restrictively allowed the effect of marriage. When married couple consent to divorce, they discharge the duty of fidelity. Another effect of marriage is restrictively applied, whether there is mutual consent to divorce or not. In this article, I present a question of so-called “de facto divorce”. It care should be used to application of a new concept of “de facto divorce”.