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A Korean court has ruled that a same-sex union is “a domestic partnership analogous to de facto marriage” and entitled to legal protection.A lower court had rejected a damages lawsuit filed by the plaintiff, who had been in a committed same-sex union with another woman, against a third party accused of having an affair with the plaintiff’s partner, resulting in the breakdown of their union. But on appeal, Judge Kim So-yeong of the Seoul Central District Court overturned the lower court’s decision and partly found in favor of the plaintiff, ordering that she be paid 10 million won (US$6,500) in damages.In its ruling on June 5, the court described the relationship between the plaintiff and her former partner as follows: “Their relationship was not just a romantic pairing, but a psychological, physical, and financial union with both sides committed to getting married. Thus, we can recognize that the two formed a domestic partnership analogous to de facto marriage.”“A domestic partnership analogous to de facto marriage that has formed between two individuals of the same sex should be regarded as an interest that merits protection under the law,” the court said. “De facto marriage” is a Korean legal concept similar to common-law marriage, used for couples who live and function as spouses without formally registering their marriage with the government.The plaintiff and her former partner began dating in May 2018 and moved in together in November 2019. While they didn’t hold a wedding ceremony, both of their families recognized the couple’s relationship, and they built an economic partnership like other couples, raising funds together to enter Korea’s public housing lottery system.Their relationship came crumbling down, however, when the plaintiff’s partner told her she wanted out. It turned out she had become romantically involved with a workplace acquaintance in June 2024.“While the plaintiff and her partner, as a same-sex couple, are unable to get married, it can surely be acknowledged that the defendant, by having an affair with [the plaintiff’s partner], was capable of wrecking their relationship,” the court said, ruling that the ex’s lover must pay damages to the plaintiff for alienation of affection.The decision can be regarded as the first time a lower court has applied the 2024 Supreme Court legal precedent that refusing to accept a same-sex partner as a dependent on state health insurance amounts to discrimination on the basis of sexual orientation.“Previous rulings and decisions were obviously predicated on the fact that same-sex relationships do not constitute legal or de facto marriages. But whether same-sex relationships are to be recognized as legal or de facto marriages is a separate question from whether same-sex domestic partnerships analogous to de facto marriage are to be recognized and regarded as interests meriting legal protection. Those questions need to be discussed separately,” the court said.“Even granting that the provisions about marriage in the Constitution and the Civil Act are predicated on unions between a man and a woman, those provisions provide grounds for recognizing the formation of a legal or de facto marriage between a man and a woman and the legal protection resulting therefrom but should not be regarded as completely excluding same-sex domestic partnerships analogous to de facto marriage from legal protection,” the court added.Marriage for All Korea, a group that advocates marriage equality, called the court’s decision significant for recognizing the nature of same-sex partnerships. “The appeals court’s decision is in line with the Supreme Court’s 2024 decision recognizing a same-sex partner’s status as a dependent on health insurance. The nature of the relationship that was confirmed in the area of social insurance has now been reconfirmed in the area of protection for private relationships,” said the group. Still, advocates say that patchwork legal protections are no substitute for marriage equality.“Protection granted piecemeal through individual decisions cannot substitute for equal marriage rights. The National Assembly needs to pass legislation to institute a system of marriage equality, and the Constitutional Court also needs to affirm that marriage is a basic right linked to human dignity, the pursuit of happiness and equality,” said Lee Ho-rim, the co-director of Rainbow Action Korea.By Nam Ji-hyeon, staff reporterPlease direct questions or comments to [english@hani.co.kr]
