This was published in She is Talking, Hee Jung Kwon’s Blog, in Nov. 2010 and translated by KUMSN. Please contact Han Seung Hee, kumsn@kumsn.org, if you have any questions.

If the Protection of Legal Marriage Causes Discrimination...

                                                                                    -      Forum Sketch

 

On Tuesday October 26, the Korea Legal Aid Center for Family Relations held the professor Rainer Frank invitational forum on the introduction of unwed moms’ right of claim for living cost and post-marital spousal support.

 

Unwed moms’ right of claim for living and post marital spousal support? I could not quite understand what is all about at first time. But the point was that since unwed moms who are raising a child or those who became a lone parent after divorce are curbed economically, the system suggests that the father of the child or the other parent who does not nurture the child should provide the child’s guardian with living expenses.

 

가법포럼-101026.jpg

 

During the presentation by the Professor Rainer Frank, I learned about the cases in Germany. In 1900, when the civil law was first executed, there was no legal ground for parenting unwed moms to claim the maintenance of a child against the child’s birth father. after amending the law in 1969, parenting unwed moms and divorced moms came to have the right of claim for the maintenance which will allow them to ask their child’s birth father to give them living expenses. However, unwed moms were in a disadvantageous position than divorced moms. The professor remarked, “Unwed moms’ right of claim for the maintenance lapsed when their child passes its first birthday whereas a child of a divorced mom was considered to be economically active after he/she reaches the age of eight.”

 

By the amendment of the law in 1995, unwed moms’ right was extended to the child’s fourth birthday. Then, not until 2007, parenting unwed moms finally have a position equivalent to divorced moms.

 

In Germany, discrimination against unwed moms on the right of claim for the maintenance has been eliminated only after a long time. In Western country, being equal of the status of unwed and wed was not something which existed from the first time, but something which was accomplished by the time passed by the effort of the society, I thought.

 

Currently, in Germany, more than 80% of divorced couples jointly exercise parental rights. In case of unwed moms/dads, the parental right was granted only to moms. However since 2009 unwed dads are allowed to exercise their parental right without the mom’s consent. Now both in name and reality, it can be said that legal discrimination exists between wed andunwed or between male and female abolished. Now indeed, whether to get married or not has become individuals’ choice in Germany. Whichever choice that one makes, he/she will not be legally discriminated due to the choice.

 

The presentation by Kim Sangyong, professor at Chungang University, followed. He gave a conclusive remark: “In Western Europe, the right of claim for the maintenance for unwed and divorced moms was introduced when the countries’ per capita GDP did not reach even ten thousand dollars. Now, Korea’s per capita GDP has closed in upon twenty thousand dollars. However, most of unwed moms’ children are still being sent abroad for adoption due to lack of financial support or social stigma in Korea. Korean government says that it has no money to spend for unwed mothers and there are more important national projects the budget should be used. However, it is a matter of where to spend the money we have, not how much money we have.” Yes, he is right!

 

Professor. Kim made his point: we should introduce unwed moms’ right of claim for the maintenance first, and then move to the right of the divorced. And the grounds for this argument are: currently many children of unwed moms are being adopted abroad and Korea is being critisized as a baby selling country. To help unwed mothers will reduce number of adoption and also going with an international guideline of the protection of original families which is described in the UN Convention. In addition, the number of unwed moms is less than divorced moms so that the government can ease its burden in budget. Professor Kim also emphasized that the government should not avoid its responsibility by passing the responsibility to individual fathers. Therefore, the system may be little more than a name unless the government’s prepayment system is established.

 

Then, discussion by Lee Hyungon, family court judge, continued. He was to some extent negative about the introduction of the right of claim for the maintenance. “As we adopted the legal marriage system, we should protect marriage couples. In regard of this, the introduction of unwed moms’ right of claim for the maintenance has no legal ground and seems very negative. If we authorize non-wed moms’ parenting, why we should protect the legal marriage?”, Mr. Lee said.

 

“However”, Mr. Lee continued, “They have children to nurture so that it is realistic to allow them to be provided with upbringing expenses. But, based on the existing law system, lawsuits related to upbringing expenses can be lodged only after recognizing a parent-child relationship. As the result of recognizing a parent-child relationship, unwed moms have to register the child’s real father on their family relationship register and unwed dads have to be registered on the list. However, neither moms nor dads want it under our current culture. Therefore, it is also not realistic.” And he advocated, “It is needful to establish an exception to tolerate the lawsuits on upbringing expenses based on the recognition of a father-child relationship.” Unlike professor Kim, he insisted that it is proper that we should introduce non-fault divorce, establish a support system for ex-spouses, and then expand to support for unwed mom families.

 

Ms. Mok Kyunghwa, president of the Korean Unwed Mothers Family Association, weighed heavily in the legislation of unwed dads’ responsibilities.

 

Ms. Mok quoted from Article 913 and Article 923 of the Civil Act: “Although a child was born between unmarried parents, it is certain that its father is naturally the real father and its mother is naturally the real mother. Therefore, the real parents shall have parental rights, respectively, and shall have rights and obligations to protect and nurture their child. In particular, they shall have custody, legal representation, disciplinary authority, and the right to designate the place of residence.” She insisted that unwed dads’ responsibilities should be legislated, legal procedures for upbringing expenses should be simplified and an organization like the Division of Child Support in the US should be established.

 

At present, if one needs to institute suit for upbringing expenses, the unwed mom herself has to record the name, job, residence, and even resident registration number of the child’s birth father. In addition, she has to squalidly state how she met him, their relatioship details, and seperated  from him. She has to feed the child, run about here and there and even explain every detail of the matter.

 

By hearing this, I thought the society makes the powerless people too tired….

 

After the discussion, I asked a question: “Currently, a child born out of wedlock cannot record its real father’s name on its birth report. I think it suppresses the fact that the man is an unwed dad and obstructs the introduction of unwed dads’ responsibilities so that it should be improved. What do you think about this?”

 

Mr. Lee, family court judge, answered: “I think the gist of the system is to protect legal marriage, in that many of unwed dads are married.”

 

The moment I heard it, I thought I had heard amiss. Feeling anxious by not having a right to speak, Ms. Kwak Baehee, head of the Korea Legal Aid Center for Family Relations, commented: “it is right to protect legal marriage. However, it is not worth encouraging, isn’t it?” I felt a little bit relieved.

 

Thoughts were coming and going through my head: “what if protecting one causes discrimination against other? If legal marriage protection causes discrimination, the problem is the legal marriage, isn’t it?”

 

It is very hard to make a living, nurturing a child at the same time doing economic activities. In addition, if she gave a birth but the family and the society does not recognize it, and the child is just a new born baby, she will certainly have a desolate life. If she does not forsake the baby, both mom and baby may fall into the jaws of death.

 

The right of claim for the maintenance, simplification of requesting upbringing expenses, or child benefits, I hope something or anything will be introduced shortly. They are also citizens of the world’s 12nd economic power and the presidency of the G20 Summit, who have rights to enjoy healthy and happy life.