Divorced After Living Together for 2.5 Years and 14 Years of Separation... Court Rules "No Pension Division for Spouse"

Court Recognizes Only Actual Marriages Lasting Five Years or More Under Revised Pension Law

The court has ruled that if the actual marriage period with a divorced spouse is less than five years, regardless of the divorce date, the individual is not eligible for the old-age pension split payment.

According to the legal community on the 12th, the Seoul Administrative Court, Administrative Division 11 (Presiding Judge Kim Jun-young) recently ruled in favor of Plaintiff A in a lawsuit filed against the National Pension Service, requesting the cancellation of the pension amount change due to the split pension payment.

Seoul Administrative Court building.

A married B in 2000 and divorced in 2017 after litigation. Although legally the couple maintained a marital relationship for about 17 years, they lived separately from 2003, making the actual marriage period only 2 years and 6 months.

A began receiving old-age pension in June 2013, and former spouse B requested a pension split from the National Pension Service in January 2022. Under the National Pension Act, a subscriber who has been married for five or more years and then divorced can share the pension.

The National Pension Service calculated the marriage period included in the pension calculation as a total of 78 months until 2013 based on the split request and paid B a pension split 50% based on the divorce date. As a result, A’s pension amount was reduced by 50%.

Disagreeing with this, A filed a lawsuit claiming that since they started living separately in 2003, the actual marriage period was only 2 years and 6 months, and including the entire marriage period in the split pension calculation was illegal.

Previously, in December 2016, the Constitutional Court ruled that the provision in the National Pension Act which uniformly included periods without an actual marital relationship due to separation or leaving home in the marriage period violated the purpose of the split pension, which is the distribution of jointly formed marital property through spousal cooperation, and declared it unconstitutional. The National Pension Act was amended in December the following year and implemented from June 2018. However, a proviso was attached stating that "the amended provisions apply only to cases where the reason for split pension payment occurs for the first time after the law’s enforcement."

The National Pension Service applied the old law provisions to B, who divorced in February 2017, and paid the split pension accordingly. However, in May last year, the Constitutional Court again declared the proviso unconstitutional, stating that applying different amended provisions depending on the divorce date that triggers the split pension payment violates the principle of equality.

The court explained the reason for ruling in favor of the plaintiff, stating, "Considering the unconstitutionality of the old law provisions revealed in the previous constitutional court decisions, the constitutional court decisions on the amendment of the new law provisions and the proviso, the old law provisions cannot be uniformly applied to split pension rights whose payment period arises after the enforcement date of the new law provisions."

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