Leading Expat Divorce Lawyer Team
Japan’s Series of Divorce Questions
Contributors
- Yoshihiro Obayashi y-obayashi@yglpc.com
A. General
The law on matrimonial matters in Japan can be found in the Civil Code (“Minpo”). Divorce proceedings in Japan are governed by the following legislations: –
- The Code of Civil Procedure (“Minzisoshoho”); and
- The Domestic Relations Case Procedure Act (“Kazizikentetsudukiho”).
B. Divorce Process in Japan
Yes. In Japan, divorce can be effected without a formal court procedure. Statistics have shown that almost 90% of divorces have been completed without a formal court procedure. If a husband and a wife agrees to divorce, they can divorce by submitting a simple form to the relevant authority such as a city office where parties resided. Foreigners can also apply for the divorce mediation to the Family Court.
There are five (5) grounds for divorce that are stipulated in the Civil Code:
- Infidelity;
- Desertion in bad faith;
- Death or life of the spouse being unknown for more than three years;
- Serious and incurable mental disease; and
- Any other ground which makes it impossible to continue the marriage (Article 770, para. 1).
At least one of the grounds will be required to prove to the Court divorce should be granted. However, these grounds for divorce are not required in the event parties are able to mutually agree on divorce.
If one is required to go through the formal court procedure, the divorce mediation (“chotei”) is mandatory prior to litigation (“sosho”). The mediation is conducted by the conciliation panel which consists of one judge and two mediators (mainly two non-lawyer mediators, one male and one female). Reportedly, about 50% of the cases can be settled by reaching an agreements during mediation and the average length of such cases last about 5 months. If the parties fail to reach an agreement at the mediation, either party may proceed to file a litigation to the court.
C. Jurisdiction Requirements in Japan
In principle, the Plaintiff can file an application of a mediation to the Court which has territorial jurisdiction over the domicile of the Defendant.
D. Child Issues in Japan
Amongst other factors the Court takes into account, the main principle guiding the Courts is arrangements for the children’s best benefit (“Konofukushi”).
In Japan, parents who have minor children should decide whether the father or the mother has custody (“shinken”) of the children upon divorce by reaching an agreement or the decision of the Court. Parents should not necessarily decide access issues for the children at the time of divorce. These access issues including but not limited to location, supervision and duration are often decided upon the divorce.
As custody (“shinken”) of the children is usually granted to the mother, the child usually resides with her with post-divorce. It is very rare that custody of the children is granted to the father.
Generally, parents do not need to decide on children’s maintenance and access issues upon the divorce. However, if parents have minor children, they usually decide children’s maintenance and access when parties have divorced.
Theoretically, both parents are obliged to share the expense of bringing up their child even after the divorce (“yoikuhi”). Generally, the amount of children’s maintenance depends on the amount of the parents’ income. Generally, child custody is usually granted to the mother and the father’s income is usually higher than the mother’s. Therefore, in practice, the father is obliged to pay a certain amount of money to the mother until the child becomes an adult, usually 20 years old.
The most important factor taken into consideration is the amount of the parents’ income. Therefore, even if the parents agree to certain amount of money as children’s maintenance, either party will be able to request the other party to increase or decrease the amount, claiming his or her income has changed.
E. Division of Matrimonial Assets in Japan
These include all of the assets, including but not limited to cash, savings and real property, that a husband and a wife have at the time of divorce are considered as matrimonial assets.
The main principle is the equal division of assets acquired between the husband and the wife for the period from the marriage to the divorce even if the wife was a housewife and has not worked.
Generally, it is very rare that the Court decides more than 50% of the matrimonial assets should belong to either party. The Court in almost all of the cases decides that the matrimonial assets should be divided equally to each party.
F. Spousal Maintenance in Japan
A husband and a wife should share the living costs during the marriage. However, there is no principle where one party is obliged to maintain the other party after the divorce.
A husband and a wife should share the living costs during the marriage. However, there is no principle where one party is obliged to maintain the other party after the divorce.
The overarching principle guiding the Court is parties’ income.
The most important factor the Court considers would still be parties’ income.
If one party who is obliged to pay maintenance does not perform his/her obligation, the other party should in most cases obtain a Court’s judgment and request the Court to enforce the judgment against the other party’s assets. As it is the applicant’s responsibility to locate the other party’s assets, it is not easy to successfully seize any assets in practice.