Since Korean society adopted Confucianism during the Joseon Dynasty, marriage between Koreans of the same surname and a common ancestor in their paternal lineage has been prohibited. The principle was codified as Article 809 in 1957, causing many couples with the same name and clan to opt for death as way out.
For instance, in 1977, a couple in their 20’s jumped to their death, leaving a note that read “We chose death over a break-up.” Since the incidence, the prohibition of marriage between individuals sharing a common surname and clan became an openly debated issue. Women activists held demonstrations, calling for the government to lift the ban. The Korean Legal Aid Center for Family Relations established a counselling facility and protested against the prohibition. As a result, the ban was temporarily lifted by special acts three times, in 1978, 1986, and 1995. (Issue No. 436, 1997. 8. 1)
Nevertheless, numerous couples faced opposition. On December 30, 1996, Kim Jongkyung in his 40’s committed suicide by taking poison after being in extreme grief because strong opposition from his siblings disabled him to register his marriage. His wife, Kim Jeongok, also died from poisoning as she tried to save her husband through mouth-to-mouth resuscitation. (Issue No. 409, 1997. 1. 17)
This time, the Constitutional Court responded differently than in the past. In May 1995, the Court ruled that Article 809(1) was not compatible with the Constitution and that it would become null and void if the National Assembly did not amend it by December 31, 1998. The court declared that other courts, government agencies, and local governments should not apply Article 809(1) until the National Assembly revised it. Consequently, roughly 60,000 couples were able to legalize their marriage and enjoy all the rights, including the right to be covered by a medical insurance.
Women activists welcomed the move, making an argument that days of the old legacy are finally over and that the abolition of the male-oriented institution will promote gender equality in the Constitution. The Korean Legal Aid Center for Family Relations added “Such poisonous and outdated clause should have been removed long time ago. The decision is a relief for so many couples that have gone through unspeakable pain.” “The Consitutional Court’s ruling is the outcome of all the effort that women activists and couples put into. The National Assembly will amend the Article in accordance with the decision as soon as possible,” said Shin Nakgyun, the chair of the Special Committee for Women in the National Assembly. (Issue No. 436, 1997. 8. 1)
In July 2000, the Ministry of Justice presented a Reform Bill, including the repeal of Article 809, to the National Assembly. The Reform Bill was passed, paving the way for the removal of the Article.
It was concluded that only marriage between individuals related to each other within eight degrees or between relatives by marriage within six degrees will be forbidden. The amendment to Article 809(1) came into force on March 31, 2005, putting an end to the prohibition of the ‘same-surname and same-clan marriage.’
