Obligation of support between spouses

The obligation to provide support between spouses is an essential obligation of the marriage relationship, and it ensures the life of the person receiving support to the same extent as the life of the person responsible for support, making it possible to maintain a joint life as a couple (see Supreme Court decision 2011Da96932, December 27, 2012).
Therefore, even if the marriage is practically broken down and the couple separates and files a divorce suit against each other, unless there are special circumstances, the marital support obligation does not expire until the legal marital relationship is completely dissolved, such as through confirmation of the judgment ordering divorce. Must see.

1. The duty of support between spouses, which seeks to ensure the life of the person receiving support to the same extent as the person obligated to support, is more effective when the couple separates for any reason and one spouse fulfills the duty of support towards the other spouse, rather than when the couple lives together and maintains a normal marital relationship. It has greater meaning when there is a need to do it.

2. Dissolution of marriage under civil law must be through divorce by agreement or trial unless the marriage is invalid or annulled. Therefore, if such divorce does not take effect, the marital relationship under the law still remains and it is determined by the will of the parties. There is always room for restoration to a normal marital relationship. This is because a virtually terminated marriage can be maintained again by withdrawing a report of divorce by agreement before acceptance or withdrawing a divorce claim (including counterclaims) before the final judgment is confirmed (Supreme Court decision 93Do2869, February 8, 1994, etc.) reference).

3. In a case requesting property division, the object and amount of property division shall be taken into consideration not only the settlement of the property relationship established during the marriage, but also the support factors such as consideration for the parties' livelihood security after divorce, and the support situation up to the end of the factual hearing. Since this right to division of property arises on the premise of finalization of divorce, support factors until divorce is final need to be considered in a separate support judgment, etc., especially if the spouse in need of support has no income. This is even more true in this case.

4. In the case of a judicial divorce, not only does one party file a main lawsuit seeking divorce, alimony, property division, etc., but the other party files a counterclaim for divorce, etc. There is an intention to divorce, so the marriage relationship must be dissolved through a court's formative judgment. It is an exercise of the right to file a claim in court to determine alimony and property division based on responsibility for the breakdown of the marriage and the scope of the couple's common property. Therefore, the fact that the person with the right to support has filed a counterclaim, such as divorce, against the main lawsuit, such as the divorce of the person obligated to support, is only a situation that the intention to divorce has been agreed, and there still remains a dispute between the two regarding responsibility for the breakdown of the marriage and the scope of marital property. Therefore, it cannot be said that the marriage has been completely dissolved.

5. Therefore, one spouse cannot claim payment of support from the other spouse even though he or she refuses to live together without a justifiable reason. However, the requirements and necessity of payment of support are recognized for one spouse who is not at fault to request payment of support from the other spouse. Unless there are special circumstances, it must be recognized even if both parties file a divorce suit against each other.The obligation to provide support between spouses is an essential obligation of the marriage relationship, and it ensures the life of the person receiving support to the same extent as the life of the person responsible for support, making it possible to maintain a joint life as a couple (see Supreme Court decision 2011Da96932, December 27, 2012). Therefore, even if the marriage is practically broken down and the couple separates and files a divorce suit against each other, unless there are special circumstances, the marital support obligation does not expire until the legal marital relationship is completely dissolved, such as through confirmation of the judgment ordering divorce. Must see.

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5) Therefore, one spouse cannot claim payment of support from the other spouse even though he or she refuses to live together without a justifiable reason. However, the requirements and necessity of payment of support are recognized for one spouse who is not at fault to request payment of support from the other spouse. Unless there are special circumstances, it must be recognized even if both parties file a divorce suit against each other.

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