Annual Review 2016: Human Rights Situation of LGBTI in South Korea

14. Marriage Equality

updated 2017.08.09 11:52 by sogilaw

The court dismisses Korea’s first same-sex marriage suit

On May 25, 2016, the Seoul Western District Court (Judge Lee Tae-jong) dismissed the objection to the denial of marriage registration filed by Kim Jho Gwang-Soo and Kim Seung-Hwan.[1] Kim Jho Gwang-Soo and Kim Seung-Hwan held a public wedding in September 2013 and submitted an application for marriage registration to the Seodaemun District Office in December. However, the District Office denied the marriage registration and the couple filed an objection to the Seoul Western District Court on May 21, 2014.[2]

The Court stated that, “’marriage,’ as it is defined in the Constitution, the Civil Act, and the Act on the Registration, Etc. of Family Relationships, is interpreted as being ‘a union based on the love of a man and woman with the purpose of a lifetime of cohabitation, and legitimized through ethics and customs,’ and cannot be expanded to ‘a union based on the love of two individuals, regardless of sex, with the purpose of a lifetime of cohabitation.’” The reasoning for the decision was that “the fundamental nature that marriage is a union between a man and a woman has not changed, and public perception differs not from this view. Even though relevant legislation such as the Constitution and the Civil Act do not specifically state that marriage is a union between a man and a woman, they do in fact mention in detail sex-specific terms. Despite that the decisions of the Supreme Court and the Constitutional Court do not directly address whether or not same-sex marriage should be permitted, both entities have declared marriage as ‘a union between a man and a woman.’” Also, it added that this was not contrary to the principle of equality under the Constitution, since same-sex marriage cannot be77 considered to be the same as a heterosexual union in relation to issues such as the “possibility of childbirth”. Moreover, the Court stated that, though it is unfortunate that it is impossible for two people to enjoy the rights as a married couple or family, it is a matter to be decided by the legislature, not by the judiciary.

The Korean Network for Partnership and Marriage Rights of LGBT “Gagoonet”, who initiated the litigation, filed an appeal criticizing the decision of the Court and stated that it would bring other same-sex marriage suits for lesbian and gay couples.[3] On December 5, 2016, however, the Seoul Western District Court (Judge Lee Yang-sub) rejected the appeal and ruled that the decision of the court of first instance was fair.[4]

Government recognizes “SOFA Status” for same-sex spouses of personnel in US Armed Forces in Korea

The Korean government decided to recognize the dependent status of same-sex spouses of US military personnel under the ROK-US Status of Forces Agreement (ROK-US SOFA). As a result, the same-sex spouses of US military personnel in Korea are subject to SOFA regulations in criminal trial jurisdiction, access to military ground shops, etc.[5] This was the first case in which the government officially recognized the rights of same-sex couples.



[1] Seoul Western District Court decision 2014Ho-Pa1842, 5/25/2016
[2] “Annual Review 2014 Human Rights Situation of LGBTI in South Korea”, Korean Society of Law and Policy on Sexual Orientation and Gender Identity, 2015, p. 64
[3] “‘Dismissal of same-sex marriage lawsuit appealed’…Other same-sex couples also file lawsuits”, KBS News, 5/26/2016
[4] Seoul Western District Court decision 2016Beu6, 12/5/2016
[5] “Government recognizes ‘SOFA Status’ for same-sex spouses of personnel in US Armed Forces in Korea” Yonhap News, 4/18/2016