The Life Partnership Act That Discourages Cohabitation

Sook-Mee Son

Chairperson of the Gender Equality Committee, Hansun Foundation

I. Should Same-Sex Couples Be Included in Life Partnership Relationships?

II. Life Partnership Registration Should Be Managed by Local Governments Rather Than Family Courts

III. The Life Partnership Act Should Adopt a Separation of Property Regime as the Basis for Dissolution

The "Act on Life Partnership Relations," proposed by Representative Yong Hye-in in 2023, is once again being discussed in online communities. This renewed attention comes as she has been re-elected to the National Assembly in the 22nd general election, raising the likelihood of the bill being reintroduced and potentially passed. The bill initially aimed to accept diverse family structures but has sparked debate due to its implications for sensitive social issues, such as homosexuality and property division. Men, in particular, have expressed concerns over property division that may arise upon the termination of a cohabitation agreement. Although the Life Partnership Act was intended as an alternative to marriage, offering couples tax and welfare benefits similar to those of married couples, some of its provisions might inadvertently discourage cohabitation instead of promoting it.

Should Same-Sex Couples Be Included in Life Partnership Relationships?

The "Life Partnership Act" proposed by Representative Yong Hye-in defines a "life partnership relationship" as a relationship in which two adults with South Korean nationality or permanent residency mutually agree to share daily life, household responsibilities, and provide care and support to each other. This relationship grants rights and obligations comparable to those of marriage. These include cohabitation, mutual support and cooperation, the right to act as an agent for daily household matters, and joint liability for household debts. Additionally, it provides various social protections such as income tax deductions, eligibility for dependent status under health insurance, and family care leave.

The Life Partnership Act proposed by Representative Yong Hye-in defines life partnership as a relationship between two adults, without specifying gender, who mutually agree to share daily life and provide care and support for each other. This inclusive definition opens the possibility for same-sex couples to be recognized under the law. In France, the PACS (Pacte Civil de Solidarit?), a similar civil union system, applies to both same-sex and opposite-sex couples, providing legal recognition and certain rights without requiring marriage.

However, South Korea has not yet legalized same-sex marriage, and granting marriage-equivalent benefits to same-sex couples through life partnerships could lead to significant social conflict. Critics argue that life partnerships could act as a gateway to legalizing same-sex marriage since they allow couples to transition from cohabitation to marriage-like arrangements. This concern reflects broader societal debates about family diversity and the legal recognition of non-traditional relationships.

It is believed that, for now, the life partnership relationship should apply to cohabiting heterosexual couples. Whether to include same-sex couples in the future should be determined through a broad process of public discussion and social consensus to reduce potential social conflicts. Furthermore, it is suggested that the name of the law be changed from the "Life Partnership Act" to the "Cohabitation Protection Act," as this would better reflect its fundamental purpose.

Life Partnership Registration Should Be Managed by Local Governments Rather Than Family Courts

Under the Life Partnership Act, the Supreme Court oversees the registration and dissolution of life partnership relationships, delegating the authority for these tasks to the family court chief judge. Consequently, individuals must visit a family court (or its branch) to register or dissolve a life partnership, which may feel similar to getting married or divorced. However, the life partnership system was designed for those who find marriage costly and complex or who avoid it due to trauma, offering a simpler way to cohabit.

Therefore, it is suggested that the registration and dissolution of life partnerships should be handled by local government offices, such as district or city halls, rather than family courts. This would reduce the psychological burden associated with the process.

Under France's PACS (Pacte Civil de Solidarit?) system, couples visit the city hall on a scheduled date to submit documents and formalize their PACS agreement. To terminate the agreement, one partner can simply apply for dissolution at the city hall or through a notary. Unlike marriage, PACS is a legally recognized cohabitation arrangement without the concept of divorce. It is easier to establish and dissolve than marriage, and it involves different legal responsibilities and rights.

Similarly, in some U.S. states, Domestic Partnership arrangements provide legal recognition for cohabiting relationships, similar to France's PACS. Registration for such partnerships is typically carried out at city halls or state government offices.

The Life Partnership Act Should Adopt a Separation of Property Regime as the Basis for Dissolution

Representative Yong Hye-in's Life Partnership Act states that "one party to a dissolved life partnership may claim property division from the other party." However, it further specifies that "if an agreement on property division cannot be reached or if it is impossible to reach an agreement, the family court, upon the request of either party, shall determine the amount and method of division by taking into account the value of the property acquired through the joint efforts of both parties and other relevant circumstances." This approach is almost identical to the method of property division outlined in Article 839-2 of the Civil Code (Right to Claim Property Division) in cases of divorce.

Under South Korean civil law, when a couple cannot reach an agreement on property division during divorce, the property jointly acquired through the cooperation of both parties is clearly subject to division in court. However, according to a 1993 Supreme Court precedent, even peculiar property owned by one spouse (typically the husband in South Korea) may exceptionally be subject to division if it is recognized that the other spouse actively contributed to maintaining, preventing the depletion of, or increasing the value of that peculiar property through economic activities. This precedent established the legal foundation for the possibility of dividing peculiare property during divorce.

Here, "peculiar property" refers to assets owned by one spouse prior to marriage or assets received as gifts or inheritance from a third party during the marriage.

In a 1994 Supreme Court ruling, it was determined that even in cases where a spouse did not make specific and tangible contributions to the increase of the other spouse's peculiar property?such as paying interest on loans secured by the peculiar property or remodeling the property?property division could still be recognized if the spouse contributed through household labor and managing the family’s finances.

Regarding this, the Constitutional Court in 1997 stated that "the property division system during divorce is fundamentally a mechanism for settling jointly acquired property formed through mutual cooperation during marriage, but it also has a supplementary function of providing support to the economically disadvantaged spouse."

Recently, it has become common practice to include peculiar property in the division of assets during divorce when the marriage duration is long. In South Korea, prenuptial agreements lack legal enforceability regarding property division after divorce, leading to a phenomenon where wealthy men avoid marriage due to concerns about the financial risks associated with potential divorce.

Regarding the Life Partnership Act, men express concerns that even upon dissolving a cohabitation relationship, exceptions similar to those in divorce could be applied, potentially subjecting peculiar property to division. Although Representative Yong Hye-in's proposed Life Partnership Act explicitly states that "each party in a life partnership relationship manages, uses, and benefits from their peculiar property," it remains unclear whether peculiar property would be included in asset division upon dissolution of the partnership.

In France's PACS (Pacte Civil de Solidarit?) system, property division upon contract termination is relatively straightforward. The PACS relationship is fundamentally governed by a "separation of property regime," where each partner independently manages their own assets and can dispose of property under their name without the other partner's consent. Even upon termination of the PACS agreement, each partner retains their separate property.

Since PACS operates as a civil contract, there is no need for property division procedures like those in marriage when the agreement ends. If joint property has been acquired under shared ownership during the PACS relationship, partners can divide it by mutual agreement, which is a voluntary process rather than a legally enforced one, requiring no formal legal procedures. However, if the partners cannot reach an agreement on the division of joint property, legal mediation may be sought, involving the intervention of a judge to resolve the matter.

In South Korea, cohabitation before marriage has been steadily increasing, with many cases starting when a woman moves into the man’s residence. Typically, no contracts are signed, nor is the cohabitation registered with any authority, leaving no legal records even if the couple separates. While the Life Partnership Act offers legal protection for cohabitation and benefits similar to marriage, overly complex property division procedures?similar to those in divorce?could discourage people from choosing cohabitation altogether.

Although the Life Partnership Act has not yet been enacted, the bill proposed in 2023 gained significant attention online, leading to an increase in inquiries from women who are currently or were previously cohabiting about the possibility of property division. The Life Partnership system is intended to provide easier access than marriage and ultimately aims to increase birth rates without requiring marriage. However, the 2023 proposal heightened concerns among young people, particularly men, by stipulating property division similar to that in divorce, despite being a legal form of cohabitation distinct from marriage.

Therefore, it is advisable that any new Life Partnership Act introduced in the 22nd National Assembly explicitly adopt a separation of property regime, similar to France's PACS system. Under this regime, peculiare property would not be included in property division upon contract termination as a general principle. This approach would alleviate concerns and encourage broader acceptance of the system.