Divorce Process in Japan
Updated: Aug 3, 2020
Hi, everyone. I would like to explain the outline of divorce procedure in Japan this time.
Through my daily works as a lawyer handling family law matters, I strongly feel that the more expanding globalization of flow and move of people and development of internet technology making it easier to communicate among people living different countries, the more increasing numbers of international marriage as well as numbers of legal consultation request from foreign nationals regarding international divorce even in Japan. So I want to answer to typical questions from my forein national clients thinking of divorce this time, namely, how you, as a foreign national living in Japan can get divorced with Japanese spouse, about what items you should make an agreement with your spouse as divorce-related matters.
Q. I’m from France. I got married with my Japanese spouse about 5 years ago in Japan and our marriage is also registered in France. We have 2 years old daughter who has dual nationalities, Japan and France. I’m thinking to get divorced with my wife. But whenever I try to have discussion with my wife regarding our future as family, in other words, divorce, she gets upset and so emotional that I cannot discuss with her constructively. What should I do and from where should I start to proceed the divorce procedure?
In case where married couple’s nationalities are different, you need to confirm which county's law should be applied to your case. According to Act on General Rules For Application of Laws, Article 27(applying mutatis mutandis of Article 25 regarding marriage) , (1) in case where either of married couple has Japanese nationality and lives in Japan habitually, Japanese laws should be applicable law. (2) in case where original country of the married couple is the same, their original country’s laws should be applicable law. (3) In case where each of the married couple’s nationality is different and non-Japanese but both of them live in the same county habitually, the law of country of their habitual domicile should be applicable law.
Let's take a look at each language of Article 25 ,26, 27.
（婚姻の効力） (Effect of Marriage) 第二十五条 婚姻の効力は、夫婦の本国法が同一であるときはその法により、その法がない場合において夫婦の常居所地法が同一であるときはその法により、そのいずれの法もないときは夫婦に最も密接な関係がある地の法による。 Article 25 The effect of a marriage shall be governed by the national law of the husband and wife if their national law is the same, or where that is not the case, by the law of the habitual residence of the husband and wife if their law of the habitual residence is the same, or where neither of these is the case, by the law of the place most closely connected with the husband and wife.
（夫婦財産制） (Marital Property Regime) 第二十六条 前条の規定は、夫婦財産制について準用する。 Article 26 The preceding Article shall apply mutatis mutandis to the marital property regime. ２ 前項の規定にかかわらず、夫婦が、その署名した書面で日付を記載したものにより、次に掲げる法のうちいずれの法によるべきかを定めたときは、夫婦財産制は、その法による。この場合において、その定めは、将来に向かってのみその効力を生ずる。 (2) Notwithstanding the preceding paragraph, if a husband and wife have designated one of the laws listed in the following as the governing law by means of a document signed by them and dated, their marital property regime shall be governed by the law thus designated. In this case, the designation shall be effective only for the future: 一 夫婦の一方が国籍を有する国の法 (i) the law of the country where either husband or wife has nationality; 二 夫婦の一方の常居所地法 (ii) the law of the habitual residence of either husband or wife; or 三 不動産に関する夫婦財産制については、その不動産の所在地法 (iii) with regard to marital property regime regarding real property, the law of the place where the real property is situated. ３ 前二項の規定により外国法を適用すべき夫婦財産制は、日本においてされた法律行為及び日本に在る財産については、善意の第三者に対抗することができない。この場合において、その第三者との間の関係については、夫婦財産制は、日本法による。 (3) The marital property regime to which a foreign law should be applied pursuant to the preceding two paragraphs may not be asserted against a third party without knowledge, to the extent that it is related to any juridical act done in Japan or any property situated in Japan. In this case, in relation to such third party, the marital property regime shall be governed by Japanese law. ４ 前項の規定にかかわらず、第一項又は第二項の規定により適用すべき外国法に基づいてされた夫婦財産契約は、日本においてこれを登記したときは、第三者に対抗することができる。 (4) Notwithstanding the preceding paragraph, a contract on marital property concluded under a foreign law pursuant to paragraph (1) or (2) of this Article may be asserted against a third party when it is registered in Japan.
（離婚） (Divorce) 第二十七条 第二十五条の規定は、離婚について準用する。ただし、夫婦の一方が日本に常居所を有する日本人であるときは、離婚は、日本法による。 Article 27 Article 25 shall apply mutatis mutandis to divorce; provided, however, that if either husband or wife is a Japanese national who has habitual residence in Japan, their divorce shall be governed by Japanese law.
■How to get divorced in Japan
Under Japanese law, there are four ways of divorce.
① Consensual divorce (kyogi-rikon 協議離婚)
This is divorce based on mutual consent between married couple without any involvement of court or other public agencies. You can get divorce legally by just submitting divorce paper signed by both of couple to the municipal office based on mutual agreement. You can get the divorce paper at the municipal office. If you have miner child/children, both of you need to write which parent has child custody after divorce in the divorce paper. Please note that joint custody is not recognized in Japan unlike most of other counties.
It is required that both of couples have intention of divorce at two points, meaning at the time of signing on divorce paper and at the time of submission of divorce paper of municipal office for effectiveness of consensual divorce . Therefore, even if you had intention to get divorced at the time of your signing in the paper, but you change your mind afterward and have no intension at the time of submission of divorce paper, divorce shall be null and void.
However, once the divorce paper accepted by the municipal office, it is almost impossible to cancel the divorce with some exception such as forged signature. In order to claim nullification of divorce, you need to file a legal action with Family court against your spouse. So to prevent submission of divorce paper against your will, you should submit the application of non-acceptance of divorce paper (Fujuri Todoke 離婚不受理届 ) to the municipal office before submittion of divoce paper in advance if you already signed the divorce paper.
2, Mediation divorce ( Chotei-rikon 調停離婚)
If you find impossible or difficult to have discussion with your partner amicably about divorce and other related matters like children and living cost etc., I recommend you to use mediation procedure at Family court which is very popular in Japan.
In mediation procedure, two mediators, one is female and other is male, appointed by Family court, facilitate constructive discussion between both parties, seeking to reach an agreement. Family court located large cities like Tokyo, Oosaka and so on will arrange mediators who can speak foreign languages including English if you have request for such mediators. So, if you are worried about communicating in Japanese with mediators, you are advised to ask the court clerk in charge of your case to arrange mediators with foreign language proficiency.
Soon after your application of mediation with the court, with adjusting with your schedule, the court designates the first session date and time which is set up at the date after 1 or 1.5 month from the date of mediation application. Length of time of one session is generally about 2 hours, but each of couple talks with mediators alternately every 30mitutes, so you do not need to meet and talk directly with opposite party ( your spouse) and you can tell your thought and request regarding divorce conditions to mediators under friendly and receptive atmosphere.
However, you should keep in mind that the purpose of mediation procedure at family court is to reach mutual agreement regarding divorce so that if there is no possibility to reach an agreement between both parties concerned, the court finishes the procedure. Though it's case-by-case, generally nevertheless the court holds 5th or 6th sessions of mediations consecutively, both parties fails to come to an agreement, the procedure also come to an end. It is the same in case that other party dose not attend the session despite of recommendation of appearance by the court.
After closure of mediation procedure, either of parties who wants to get divorced files a sue against a spouse claiming divorce and other related matters such as child custody, visitation of children, division of marital properties, damage compensation and so on with Family court.
3, Adjudication divorce ( shinpan-rikon 審判離婚)
In adjudication procedure, when both of parties come into conclusion of agreement amicably, the court renders the judgement with the same content of agreement between parties concerned. This form of divorce is used in the case that other party’s country dose not admit and nor certify effectiveness of (consensual) divorce in other county except for the divorce authorized by the judicial court.
4, Litigation divorce (saiban-rikon 裁判離婚)
Finally, if both of you fail to reach an agreement in above mentioned processes but you still want to get divorced, you have no choice but filing a litigation against your spouse. When the judge finds your alleged causes of divoce amoung following legal cause of divorce (stipulated in Article 770, Civil Code) , the judge renders judgment ordering divorce and related items. The plaintiff (a spouse claiming divorce) has the burden of proof regarding legal causes of divorce in accordance with Civil Code, Article 770, by objective evidence and persuasive statements.
① Spouse committed adultery
② Abandoned with malicious intention
③ Spouse missing for more 3 years
④ Spouse with irrecoverably serious mental illness
⑤ Other reasons which makes marital relationship impossible to continue
For example, personality-incompatibility, abusive behaviors including domestic violence are contained in cause No⑤
Even once you file a law suit with Family court and litigation proceeding starts, you will have several chance to reach an mutual agreement about divorce through facilitation by the judge before the one-sided judgement.
■ Items to be agreed as divorce conditions
On finalizing the divorce procedure ultimately, you should make comprehensive agreement regarding divorce-related matters as well as divorce in itself in writing in order to prevent further conflicts even after divorce.
In particular, child custody ( if you have miner children) , child support, division of marital property and asset, condition of child visitation, division of pension are must-items in divorce agreement. Other than these items, you can set forth necessary conditions flexibly based on mutual consent.
■Sample of divorce agreement
Here is a sample of divorce agreement in mediation procedure. You can make use of these sample, adjusting language and adding agreed items in your case.
Party A and Party B confirm that both of parties concerned has entered into conclusion of divorce on the date of ●● in the mediation procedure at Tokyo Family court.
Both parties concerned agree that Party A shall be granted legal single child custody of their two children, the first son C ( Birthday; June 14th 2010) and the first daughter D ( Birthday: July 2nd 2013) to take care of the two children under her legal single custody authority.
３、 Financial support involving children
Party B shall pay Party A 100,000JPY per child as child support due by the end of every month until each child graduates from university or similar tertiary educational organization by way of bank transfer to Party A ‘s designated bank account, provided however, both parties shall discuss necessary costs involved in each of child other than the above-mentioned regular child custody payment.
４、Division of marital property.
Both parties confirm that real estate as attached are the scope of marital property to be divided at the time of divorce and agree to sell for financial realization as soon as possibly not later than ●●2020. The financial gain obtained by selling the real estate (as attached) shall be divided evenly between the parties. The gain will be divided after the deduction of the house cleaning, real estate registration-related fees, repairment costs, other necessary costs involving selling the estates and paying off the outstanding housing loan of the estate.
Party A shall cooperate and make necessary arrangement for Party B to meet and spend with two children, Party C and Party D at least for 3 hours once a week and stay the night once a month under the following conditions. ※ You can set forth more detail condition based on mutual consent.
6、 Release and Discharge
Party A and Party B mutually confirm that, between Party A and Party B, other than those stipulated in this agreement, there are no claims and obligations each other.
7、All Cost regarding this mediation application
The cost related this mediation procedure shall be bored on each party’s own.
Hope this blog is helpful for you.
I’m going to write regarding criteria and what elements are considered by the court when it coms to which parent be granted child custody in the next blog.