In director Christopher Nolan's film "Odyssey," Odysseus (played by Matt Damon), king of Ithaca, wanders for many years before returning home after the Trojan War. His wife, Penelope (played by Anne Hathaway), fends off suitors and waits for his return even though she cannot know whether her husband is alive or dead. Following the original setting, the period Odysseus is away from home adds up to 20 years—10 years of war and 10 years on the journey home.
If the same thing happened in Korea today, Penelope would not have to wait 20 years. Under the current Civil Act, if a spouse's life or death cannot be confirmed for more than three years, one may file for judicial divorce. However, a marriage does not automatically end just because there has been no contact for three years.
◇ Three years instead of 20… divorce can be filed if "life or death is unknown"
Article 840, subparagraph 5 of the Civil Act sets "when the spouse's life or death has not been clear for three years or more" as a ground for judicial divorce.
Kwon Yang-hee, an attorney who formerly served as a domestic relations specialist judge at the Seoul Family Court and now leads the family and inheritance team at Shin & Kim LLC, said, "If more than three years passed after Odysseus went to war without being able to confirm whether he was alive, Penelope could file for divorce on that basis."
The key is that simple "loss of contact" differs from "life or death unknown." Even if you do not know your spouse's whereabouts or contact information, if it can be confirmed through family or acquaintances that the spouse is alive, it cannot be deemed life or death unknown. What matters is not the period when Odysseus could not contact Penelope, but the period when Penelope could not confirm whether he was alive at all.
◇ One year for wartime missing… inheritance also upon a declaration of disappearance
Penelope also has the separate option of seeking a declaration of disappearance, apart from divorce. While divorce only ends the marital relationship, a declaration of disappearance is a system that deems a person whose life or death has not been confirmed for a long time to be legally dead.
For a general disappearance, life or death must be unclear for five years, but Article 27, paragraph 2 of the Civil Act allows a special declaration of disappearance if a "person engaged at the front" cannot be confirmed alive or dead for one year after the end of a war. If the Trojan War is deemed a war under Korean law, this provision could apply to Odysseus.
However, one does not immediately file a standard death report for Odysseus when actual death has not been confirmed. After obtaining a court declaration of disappearance, one must file a "report of declaration of disappearance" under the Act on the Registration of Family Relations.
Once the declaration of disappearance is finalized, the person is deemed to have died when the disappearance period expires, and inheritance is considered to have commenced at that time. Applying Korean law as is, Penelope, as the spouse, and their son Telemachus could become co-heirs.
Attorney Kwon noted, "While divorce only dissolves the marriage with Odysseus, a declaration of disappearance differs in that Odysseus is deemed legally dead when the disappearance period expires."
◇ What if he returns alive after 20 years
If Odysseus returns after 20 years as in the original, the outcome varies depending on which procedure was taken.
If Penelope obtained a finalized divorce judgment on the ground that his life or death was unknown, the marriage would not be revived even if Odysseus came back alive. Attorney Kwon explained, "The effect of the divorce remains. For the two to become spouses again, they would have to newly register their marriage."
If there was a declaration of disappearance, one can petition the court to revoke the declaration once Odysseus's survival is confirmed. What happens to the marital relationship after that can vary depending on whether Penelope remarried in the meantime and whether the parties to the remarriage knew Odysseus was alive.
In the end, what modern Korean law asks of Penelope is not "20 years of waiting." If a husband's life or death cannot be confirmed for more than three years, one can file for divorce, and if the case involves a wartime disappearance, a special declaration of disappearance is possible using one year after the end of the war as the standard.
However, since divorce ends the marital relationship and a declaration of disappearance treats the person as legally dead, Odysseus's legal fate upon returning after 20 years would also differ.