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Contemplation on the Protection of the Inheritance of a Spouse in a De Facto Marriage

  • DONG-A LAW REVIEW
  • 2011, (53), pp.225-258
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

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ABSTRACT

It could be said that whether the inheritance of the spouses of a De Factor marriage should be protected was clarified by the ruling of the Supreme Court. The precedent determines that the if the marriage was terminated while both of the spouses were alive, the claim for a partition of the property right could be granted, while when the marriage was terminated by the decease of either spouse, the living spouse cannot be granted with the claim for a partition of the property right but only with the right for inheritance of the properties of the deceased. In this regard, the Supreme Court ruled that, when the De Facto marriage was terminated by decease of one of the spouses, the right for the partition of the property count not be granted to the living one. Further, the precedent also determined that if both of the right of inheritance of the properties of the deceased and the right for the partition of the property were not to be granted, it could be against the law’s intent of protecting the relationship based on a De Facto marriage. But, this is due to our legal system which does not include a spouse in a De Facto marriage as a successor, and there was nothing that could be done in terms of the interpretation of the law, while the perspective of law making was a separate issue. Meanwhile, the Supreme Court also pointed out that the current law provides no protection to the spouse in a De Facto marriage and called for a solution in the perspective of law making. But, such attitude of the court means that the settlement of the property ownership could only be made when the De Facto marriage was terminated while both of the spouses are alive, and it is under the criticism that such an attitude is an injustice in terms of the protection of the spouses in the De Facto marriages. Therefore, it is an imminent issue to be addressed to find a way to provide a balanced protection to such spouses.

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