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2022/10/11News

Divorce process in Japan

Q. I’m from France and live with my Japanese wife and 2-year-old daughter having dual nationalities, Japan and France. I’m thinking to divorce my wife. But whenever I try to discuss this with my wife, she gets so upset that I find it difficult to have a constructive discussion with her. What should I do and how should I start the divorce procedure?

Answer.

1, First, you should sort out possible disputed points and organize your thought about these points.

Commonly disputed points in a divorce case are…

     1) Divorce,  2) Child Custody (if your child is under 18 years old),  3)  Child support (Financial support for a minor child), 4) division of marital property.  5) Child Visitation  6) Spousal support, 7) Emotional Damage 


    2, Second, you should check the applicable law in your case. 

    In a nutshell, if your spouse is Japanese and she/he lives in Japan, the applicable law is automatically Japanese law. 


    Regarding applicable law,   Articles 25,26, and 27. Act on General Rules For Application of Laws stipulates as below.
    In a case where a 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 a case where either of you has Japanese nationality and lives in Japan habitually, Japanese laws should be the applicable law. (2) in a case where the original country of the married couple is the same, their original country’s laws should be the applicable law. (3) In a 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 the country of their habitual domicile should be the applicable law.

    (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 using 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) about the 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 under 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, for such a 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 foreign law under 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 a habitual residence in Japan, their divorce shall be governed by Japanese law.

    3, Third, you should choose which divorce proceeding to take.  In Japan, there are four ways of divorce.

    ① Consensual divorce (Kyogi-Rikon 協議離婚)

    This is a divorce based on mutual consent between married couples without any involvement of a court or other public agencies. You can get a divorce legally by just submitting a divorce paper signed by both couples to the municipal office based on mutual agreement. You can get the divorce paper at the municipal office. If you have minor 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 other counties.

    It is required that both couples have the intention of divorce at two points, meaning at the time of signing the divorce paper and at the time of submission of the divorce paper to the municipal office for the effectiveness of consensual divorce. Therefore, even if you had the intention to get divorced at the time of your signing in the paper, but you change your mind afterward and have no intention at the time of submission of the divorce paper, divorce shall be null and void.

    However, once the divorce paper is accepted by the municipal office, it is almost impossible to cancel the divorce with some exceptions such as a forged signature. To claim nullification of divorce, you need to file a legal action with the Family court against your spouse. So to prevent submission of the divorce paper against your will, you should apply non-acceptance of the divorce paper (Fujuri Todoke 離婚不受理届 ) to the municipal office before submitting of divorce paper in advance if you already signed the divorce paper.

    ② Mediation divorce ( Chotei-Rikon 調停離婚)

    If you find it impossible or difficult to discuss with your partner amicably divorce and other related matters like children and living costs etc., I recommend you use the mediation procedure at Family court which is very popular in Japan.

    In the mediation procedure, two mediators, one female, and the other male, appointed by the Family court, facilitate constructive discussion between both parties, seeking to reach an agreement. The family court located in large cities like Tokyo, Osaka, and so on will arrange mediators who can speak foreign languages including English if you have a 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 you apply for mediation with the court, adjusting to your schedule, the court designates the first session date and time which is set up at the date after 1 or 1.5 months from the date of mediation application. The length of time of one session is generally about 2 hours, but each couple talks with mediators alternately every 30 minutes, so you do not need to meet and talk directly with an 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 the mediation procedure at family court is to reach a mutual agreement regarding divorce so that if there is no possibility of reaching 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 mediation consecutively, both parties fail to agree, the procedure also comes to an end. It is the same in case the other party does not attend the session despite of recommendation of appearance by the court.

    After the closure of the mediation procedure, either of the parties who want to get divorced file a suit 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 the adjudication procedure, when both parties come to a conclusion or agreement amicably, the court renders the judgment with the same content as the agreement between the parties concerned. This form of divorce should be used in the case where the other party’s country dosen’t recognize the effectiveness of (consensual) divorce in another county except for the divorce authorized by the judicial court.


    ④ Litigation divorce (Saiban -Rikon 裁判離婚)
    If you fail to reach an agreement in the above-mentioned processes, but you still want to divorce, you have no choice but to file litigation against your spouse. When the judge finds your alleged causes of divorce among the following legal ground of divorce (stipulated in Article 770, Civil Code), the judge will render a one-sided judgment ordering divorce and related matters. The plaintiff (a spouse claiming divorce) has the burden of proof regarding the legal grounds of divorce by the Civil Code, Article 770, by objective evidence and persuasive statements.

    ⅰ Spouse committed adultery

    ⅱ Abandoned with malicious intention

    ⅲ Spouse missing for more 3 years

    ⅳ Spouse with irrecoverably serious mental illness

    ⅴ Other reasons which make a marital relationship impossible to continue
    For example, personality incompatibility, and abusive behaviors including domestic violence are contained in item ⅴ

    Please take note that even once you file a lawsuit with the Family Court and the litigation proceeding starts, the judge will give you chances to settle the divorce and related matters amicably by facilitating the discussion before rendering the one-sided judgment. The litigation proceeding is more flexible than you might expect. 

    4, Sample of the divorce agreement
    Below is a sample of the divorce agreement in the mediation procedure. You can make use of this sample, adjusting language and adding agreed items in your case.

    ① Divorce
    Party A and Party B confirm that both parties concerned have entered into the conclusion of divorce on the date of ●● in the mediation procedure at Tokyo Family court.

    ②Child Custody
    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.

    ③Financial 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.

    ④Division of marital property.
    Both parties confirm that real estate as attached is the scope of marital property to be divided at the time of divorce and agree to sell for financial realization as soon as possible 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, and other necessary costs involving selling the estates and paying off the outstanding housing loan of the estate.

    ⑤Child Visitation
    Party A shall cooperate and make necessary arrangements for Party B to meet and spend with two children, Party C and Party D at least 3 hours once a week and stay the night once a month under the following conditions. ※ You can set forth more detailed conditions based on mutual consent.

    ⑥Release 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 to each other.

    ⑦All Costs regarding this mediation application
    The cost related to this mediation procedure shall be bored on each party’s own.

    That’s it. Hope this blog is helpful to you.

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