Article 809 of The Korean Civil Code - Rules Restricting Marriage

Rules Restricting Marriage

In Korea, a child inherits his or her father’s surname. Traditionally, men and women who have the same surnames and "ancestral homes", called dongseong dongbon (Hangul: 동성동본, Hanja: 同姓同本), are not permitted to marry.

The rule, called honinbeop (Hangul: 혼인법, Hanja: 婚姻法), originated in China, and can be traced back at least to the late Joseon Dynasty in Korea. In the context of Confucianism, the rule was a mechanism to maintain family identities and ensure the integrity of the family as a sociopolitical institution.

The marriage rule was codified as Article 809 in 1957. It read as follows:

Article 809 (1): A marriage may not be allowed between blood relatives, if both surname and its origin are common to the parties.

Those surnamed Kim (Hangul: 김, Hanja: 金), for example, can be divided between 282 different blood ancestors, each of whom are identified with a different ancestral home. The two most populous branches of the Kim clans are Gimhae (with 4 million members) and Gyeongju (1.5 million members). As these two Kim clans descend from different patrilineages, a Gimhae Kim and a Gyeongju Kim can marry. Before the 1997 Constitutional Court decision, however, two members of the 4 million Gimhae Kim could not marry, regardless of the distance of their relationship.

Even at the time of codification, the article was controversial. Because of population growth, greater mobility and increasing urbanisation in South Korea, the chance of meeting and falling in love with someone from one's own patrilineage was much greater. It was especially a problem for the three largest Korean clans, the Gimhae Kims, the Milyang Parks, and the Jeonju Lees.

Despite Article 809, many men and women sharing the same partilineage chose to live together as husband and wife. The common surname marriage ban was temporarily lifted by special acts three times, each for a period of one year, in 1977, 1987, and 1995. At the time of the first special act in 1977, 4577 same name/common ancestor couples became legally married. In 1988 the number increased to 12,443, and by 1996, it had reached 27,807. Some estimate that the actual number is as high as 200,000 couples, nearly 2 percent of all married couples in South Korea. The children born of such marriages were, legally, out-of-wedlock. They were not eligible for national health insurance and were discriminated against in matters of inheritance and property rights.

The Korean Legal Aid Center for Family Relations established a special report and counselling facility for couples subject to Article 809. According to the centre, 1617 people filed with the facility between June and November 1977.

Article 809 has been much criticised by family lawyers and the Korean Law Association on the ground that it infringes on the freedom of choice in marriage, and that it reinforces traditional paternalism. At the same time, many Confucian-oriented conservatives urged its preservation.