법정별거제도에 대한 소고(小考)

초록

Judicial separation developed in medieval Europe under the influence of the Catholic Church, where the principle of the indissolubility of marriage prevailed as an alternative to divorce. Accordingly, questions may be raised as to whether there is a need to introduce such a system into contemporary Korean society, which lacks this particular historical and religious background. From a historical and religious perspective, it is true that judicial separation has little direct connection with our society. Nevertheless, regardless of these origins, judicial separation may still prove useful in the present context. First, under the current Korean Civil Code, the legal framework governing the formation and dissolution of conjugal life is confined to two systems—marriage and divorce—with no intermediate arrangement, leaving virtually no alternative choice. From a comparative law perspective, however, several jurisdictions have adopted more diverse approaches: some (such as France and Belgium) have introduced registered partnerships as a lighter alternative to marriage, while others maintain judicial separation, allowing couples to remain legally married while being partially released from the rights and obligations arising from marriage. Introducing such arrangements would broaden the range of available options, consistent with the spirit of party autonomy and the principles of civil law. Second, even when a marriage has broken down, some individuals may refrain from divorce due to religious reasons, personal moral convictions, or considerations regarding children and other family members. For them, judicial separation could serve as a viable alternative, enabling the legal bond of marriage to be preserved while alleviating certain obligations. Third, couples who perceive their marriage as irretrievably broken may, by choosing judicial separation instead of immediate divorce, experience a lifestyle similar to post-divorce circumstances. Such a period of reflection could even create the possibility of reconciliation and restoration of the marital relationship.

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