Court: "Cannot Claim Pension Division for Separation Period Without Sharing Household and Childcare Duties"

Claiming Divided Pension from Divorced Spouse
Calculation Should Consider Actual Marriage Duration

Seoul Administrative Court, Yangjae-dong, Seoul. [Photo by Seoul Administrative Court]

Even if the legal marital relationship is maintained, a court ruling has stated that a claim for the division of old-age pension cannot be made for the period during which the spouses lived separately and did not share any roles as a couple, such as household chores or childcare.

According to the legal community on the 7th, the Seoul Administrative Court Administrative Division 2 (Chief Judge Shin Myung-hee) recently ruled in favor of plaintiff A in a lawsuit filed against the National Pension Service seeking cancellation of a reduction in old-age pension.

A, who married B in October 1983, divorced B by mutual agreement in October 2005.

A joined the National Pension in January 1988 and began receiving pension benefits in February 2007, reaching the old-age pension eligibility age just 1 year and 4 months after the divorce.

After turning 60, the age at which an ex-spouse can claim a divided pension, B requested the National Pension Service in December 2020 to pay a divided pension corresponding to the marital period during A’s National Pension subscription period.

Article 64 of the National Pension Act (Entitlement to Divided Pension, etc.) stipulates that a divorced spouse whose marital period (the period of marriage during the spouse’s subscription period, excluding periods when a substantial marital relationship did not exist due to separation, desertion, etc.) is five years or longer can claim an equally divided pension from the old-age pension beneficiary who was their spouse upon reaching 60 years of age.

The National Pension Service, based on the supplementary provisions of the National Pension Act, determined that B, born in 1959, would acquire the right to receive the divided pension starting from February 2021 when B turned 62, and notified A that the old-age pension amount would decrease from 599,950 KRW per month to 303,170 KRW per month due to the divided pension payment to B.

A filed a review request with the National Pension Review Committee, arguing that there was no substantial marital relationship with B from April 1994 to October 2005, but the request was dismissed. Upon filing a re-examination request with the National Pension Re-examination Committee, only the period from August to December 2002, during which B was registered as 'residence unknown' on the resident registration abstract, was excluded from the entitlement period.

Ultimately, A filed a lawsuit.

The key issue in the trial was how to view the marital period between A and B.

The marriage certificate submitted by A recorded the marital period as from October 17, 1983, to October 6, 2005.

However, the divorce report attached to the mutual divorce confirmation stated that the actual separation date was April 20, 1994, and their two sons testified that from April 1994, when their mother left the house, until October 2005, they neither lived with their father nor maintained a marital relationship with him for 11 years and 6 months.

The court acknowledged that even according to A’s claim, the marital period with B during A’s 206 months of National Pension subscription was over five years, and that B reached the age eligible for divided pension after A’s old-age pension entitlement arose, thus recognizing B’s right to receive the divided pension.

However, since the period after the separation began on April 20, 1994, was a period during which no substantial marital relationship existed, the court ruled that only the period from January 1988, when A first joined the National Pension, to April 19, 1994, could be recognized as the marital period.

In conclusion, the court ruled, "The pension amount change decision related to the divided pension payment made by the defendant (National Pension Service) to the plaintiff (A) shall be canceled for the period outside the marital period between the plaintiff and B (from January 1, 1988, to April 19, 1994)."

Previously, in December 2016, the Constitutional Court declared Article 64, Paragraph 1 of the National Pension Act, which governs divided pensions, unconstitutional.

The court judged that including periods during which a substantial marital relationship did not exist due to separation or desertion uniformly as part of the marital period for calculating divided pensions exceeded the legislature’s discretion.

The divided pension system for divorced spouses has both property rights and social security characteristics. The property rights aspect recognizes that the old-age pension entitlement is a joint marital asset achieved through cooperation during married life, and thus the contribution portion should be divided after divorce. Therefore, the calculation should be based on the actual marital period, considering whether household chores, childcare, and other shared responsibilities were fulfilled during the marital life.

Subsequently, the relevant provision was amended to exclude periods during which a substantial marital relationship did not exist due to separation, desertion, etc., when calculating the marital period.

The court referred to this Constitutional Court decision and the legislative history of the amendment, stating, "During the subject period of this case (from the start of separation to the divorce), the plaintiff and B had different registered addresses and did not share any roles in household chores, childcare, or other aspects of marital cohabitation." The court also pointed out, "In particular, the two sons testified that after their mother left the house around 1994, she did not care for her siblings or perform household chores, and their grandmother took full responsibility for raising the siblings and household duties."

The court concluded, "Granting B the right to receive a divided pension for the subject period on the premise that it corresponds to the marital period is unjust."

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