離婚・親権

2022/03/28離婚・親権

Is ‘consensual divorce’ Kyogi-rikon possible for non-Japanese divorcing couple?

Question: Is ‘’consensual divorce’’ (kyogi-rikon 協議離婚) possible in the case where either or both of married couples are non-Japanese?
Answer: If Japanese law applies to your case based on Article 27, 25 of the Act on General Rules for Application of Law, consensual divorce based on mutual agreement without court involvement is possible. However, you should be careful that the validity and effectiveness of consensual divorce in Japan may not be recognized in other counties abroad. So, you are advised to make an inquiry to some experienced family lawyers in the country in which your marriage is registered, about whether consensual divorce in Japan can be effective in that county.
In Japan, there are four ways of divorce, meaning consensual divorce, mediation divorce, adjudication, divorce (including adjudication in lieu of agreement in accordance with Article 277, Family Proceeding Act, and adjudication in lieu of mediation in accordance with Article 284, Family Proceeding Act), and litigation divorce. Consensual Divorce is literally the way of divorce based on mutual consent between a married couple without any involvement of the court and other equivalent public agencies as well as any specific formality. You can get divorced by submitting a divorce application format filled out with necessary items and signed by each of the parties and two witnesses to the municipal office where the couple (or the Japanese spouse if only one of the spouses is a Japanese citizen) has their domicile or habitual residence based on your mutual agreement of divorce.
In the case that both or either of a married couple is non-Japanese, but this marriage is “not” registered in any countries other than Japan and also an applicable law of your divorce case is Japanese law, you need not worry about the effectiveness of consensual divorce in another country. However, even though the applicable law is Japanese law, the marriage has been registered in foreign countries such as the spouse’s home country, you should be careful whether consensual divorce in Japan could be valid in a foreign country as well.
The General Rules on the Application of Laws stipulates which country’s laws shall be applied in terms of establishment and formation of divorce (refer to Article 27, 25 of Act on General Rules for Application of Law)
-If one of the spouses is a Japanese national residing in Japan, you can divorce by way of consensual divorce based on mutual agreement.
-In the case where both spouses are foreign nationals, and both are of the same nationality, in that case, If their country’s law allows consensual divorce, they can get divorced by consensual divorce based on their country’s law.
-What if both parties are foreign nationals but they have different nationalities? In this case, the divorce shall be governed by the law of the country of their habitual residence, or if neither of these laws exists, by the law of the county most closely related to the couple.
In some countries, consensual divorce is not acceptable as a way of a divorce, rather it is said that consensual divorce is a unique divorce system in Japan. Some countries do not recognize consensual divorce without the court’s involvement such as the court judgment for divorce. For example, the Philippines does not allow “divorce” per se (however, it seems that a validly granted divorce judgment in a foreign country is also recognized in the Philippines). In such cases, even if the divorce is valid in Japan, the divorce in Japan may not be recognized in the other country.
Even if your home country does not recognize the divorce by mutual consent, if you have official evidence that the divorce was binding and finalized in Japan, such as a copy of the family register or the certificate of divorce acceptance issued by the municipal office, your home country may recognize effective of divorce in Japan.
On the other hand, some countries do not recognize consensual divorce but recognize the effectiveness of foreign divorce that was established through the court proceeding such as mediation as well as the court judgment.
Suppose you have registered your marriage both in Japan and abroad. In that case, it is recommended that you would confirm in advance whether the validity of your divorce under Japanese law and the Japanese way would be recognized and effective in your home country.
What if both spouses agree on the terms of the divorce and other conditions and get a divorce as soon as possible? In that case, there are possible ways, meaning applying for an “Adjudication in lieu of mediation “or “Adjudication in lieu of agreement,” in which the married couple can get divorce by taking a form of the court adjudication with the same content of mutual agreement between divorcing couple. However, international divorce cases are very complicated in many ways, so you should check related matters including the effectiveness of foreign divorce and applicable laws in advance with lawyers and relevant authorities (including websites), and literature in the relevant country.

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