Constitutional Court: "'Marriage Ban Within 8th Degree Relatives' Constitutional... Marriage Nullification Unconstitutional"

4 Judges Declare Ban on Marriage Within 8th Degree Relatives 'Unconstitutional'... "Not a Universal Norm"
Unanimous Agreement on Need for Legal Reform on 'Marriage Nullification'... "Leads to Excessively Harsh Consequences"

Constitutional Court Chief Nam Seok and other constitutional justices entered and took their seats in the Grand Bench of the Constitutional Court in Jongno-gu, Seoul, on the afternoon of the 27th.
[Image source=Yonhap News]

[Asia Economy Reporter Heo Kyung-jun] The Constitutional Court has ruled that the legal provision prohibiting marriage between blood relatives within the eighth degree of kinship does not violate the Constitution. However, the Court decided that the Civil Code provision declaring such marriages 'void' is unconstitutional.

On the 27th, the Constitutional Court upheld the constitutionality of Article 809, Paragraph 1 of the Civil Code, which prohibits marriage between blood relatives within the eighth degree, by a 5 (constitutional) to 4 (unconstitutional) vote. Meanwhile, it ruled unanimously that Article 815, Item 2 of the Civil Code, which declares marriages violating Article 809, Paragraph 1 as void, is unconstitutional.

The unconstitutionality ruling with a grace period acknowledges the unconstitutionality of the legal provision but temporarily maintains it to prevent confusion that would arise from immediate invalidation. If the legislature does not amend the law, this provision will lose its effect after December 31, 2024.

Mr. A, after living with his spouse whom he met in the United States for several years, returned to Korea. Afterward, his spouse demanded a divorce, which he refused. Subsequently, the spouse filed a lawsuit to confirm the marriage's invalidity, citing that they are sixth-degree relatives.

After losing the first trial for divorce, Mr. A requested a constitutional review during the second trial, but it was dismissed. After losing the second trial as well, he filed a constitutional complaint.

The Constitutional Court stated regarding the provision prohibiting marriage between blood relatives within the eighth degree, "Consanguineous marriage can cause difficulties in forming and agreeing on a free and genuine intention to marry due to the hierarchy or influence among close blood relatives, and may lead to sexual tension, conflict, or exploitation. It can also cause confusion by changing the status relationships among close blood relatives, disrupting the roles and positions of individual members."

It added, "Incest, universally tabooed in human cultures, makes it difficult for the parties involved and their children to maintain private bonds and cooperative relationships based on trust and affection generally expected among family and relatives, potentially leading to the dissolution of close kinship. The prohibition aims to prevent confusion related to mutual relationships, roles, and status among close blood relatives caused by consanguineous marriage and to maintain the function of the family system, thus its legislative purpose is legitimate."

On the other hand, Justices Yoo Nam-seok, Lee Seok-tae, Kim Ki-young, and Moon Hyung-bae dissented, stating, "The notion that blood relatives within the eighth degree are 'close kin' is no longer universally accepted across regions or generations. Even based on genetic research, it is difficult to scientifically prove that marriages within the eighth degree uniformly cause genetic harm to offspring or descendants. Therefore, the genetic perspective cannot be a reasonable basis for restricting the freedom to choose a marriage partner and constitutes an excessive restriction beyond what is necessary to achieve the legislative purpose, violating the principle of minimal infringement."

Regarding the Civil Code provision declaring marriages between blood relatives within the eighth degree 'void,' Justices Lee Sun-ae, Lee Eun-ae, Lee Jong-seok, Lee Young-jin, and Lee Mi-seon opined, "If consanguineous marriages have already been established, with the parties fulfilling spousal rights and duties, having children, or developing expectations of trust and cooperation within the family, retroactively invalidating such marriages could result in outcomes contrary to the original legislative purpose of maintaining the family system."

They also noted, "Currently, Korea lacks a clear civil registration system to verify whether parties are within the eighth degree of kinship. There may be cases where parties discover post-factum that they are within the eighth degree by chance. However, under the current Family Litigation Act, any party, legal representative, or relative within the fourth degree can file a suit to annul the marriage without exception at any time. This can cause excessively harsh consequences for the parties or their children," thus supporting the unconstitutionality ruling.

Another group of justices issuing a unconstitutionality opinion?Yoo Nam-seok, Lee Seok-tae, Kim Ki-young, and Moon Hyung-bae?stated, "In cases where consanguineous marriage seriously undermines the family system's function, such as marriages between direct blood relatives or siblings, declaring the marriage void is justified. For other consanguineous marriages, the law should allow dissolution through annulment rather than retroactive invalidation, thereby protecting the legal status of the parties and their children already formed, which can sufficiently achieve the legislative purpose."

This content was produced with the assistance of AI translation services.