SHIKI-NO-KAZE LAW GROUP

DIVORCE

■　Japanese Divorce Law

How to divorce

Mainly there are three types of divorce under the Japanese law:

1. “Kyogi Rikon” Divorce by Agreement
   It is an out-of-court divorce. If the couple agrees to divorce, they can get a divorce by filling out a document called “rikon todoke” and simply submitting it to the local government. If the couple has children, they have to decide who will have the parental rights of the children after divorce. Parental rights are similar to custody, and they include rights to live with the children, to make decisions regarding the children, and to control the children’s assets.
   
   
2. “Chotei Rikon” Divorce in Mediation
   It is a divorce agreed in the mediation. If the couple cannot agree to divorce or they are willing to get a divorce depending upon the conditions, either one of the couple can apply for divorce mediation at the Family Court.
   Mediation in the family court is supposed to be presided over by three mediators: a judge, and a man and a woman who are over 40 years old with some social experiences. However, the judge is mostly absent from the mediation and the mediation is usually conducted by two people without legal knowledge.
   Mediation sessions are usually held once a month. Since most mediators are lay people, if you do not have legal knowledge, a clear goal, and a maneuvering skill, it could drag on without any satisfying outcome.
   
   
3. ”Rikon Saiban” Divorce by Judgment
   If the mediation fails, the only available means to divorce will be litigation. One or both parties seeking divorce may sue the other/each other for divorce. Divorce is granted when the judge finds one of the following causes stipulated in Civil Code Article 770 (1):
   
   
   1. When a spouse has committed an act of unchastity;
   2. When abandoned by his/her spouse in bad faith;
   3. When it is not clear whether Plaintiff’s spouse is dead or alive for not less than three years;
   4. When a spouse is suffering from severe mental illness and there is no prospect of recovery; or
   5. When there is any other grave cause making it difficult to continue the marriage.

During the course of litigation, the judge often suggests to hold settlement meeting. If the parties agree to settle, they can get a divorce by settlement, which is called “Wakai Rikon.”

Issues involved in divorce

It is helpful to identify what are the possible issues in your divorce and be prepared before you initiate the divorce procedure.

1. Spouse’s Willingness to Divorce
   If you want to divorce, but your spouse does not, you will follow these 3 steps:
   1. Try to persuade him/her to agree to divorce by, for example, offering more assets/money than he/she could be awarded by the court if it grants divorce.
   2. If the out-of-court negotiation fails, you will apply for mediation at the family court, and negotiate with your spouse through the mediators.
   3. If you cannot agree in the mediation, you will have to sue your spouse to get a divorce. However, unless the judge finds one of the causes for divorce stipulated in the Civil Code, divorce will not be granted.
      
      
2. Who created the Cause of Divorce?
   If one of the parties created the cause of divorce, the other may demand compensation for mental suffering. Amount of compensation in many cases ranges between 2-3 million yen, and 5 million yen at most.
   
   
3. Division of Marital Assets
   Assets obtained with earnings of either husband or wife during marriage are considered “marital assets.” Marital assets existing at the time of separation are subject to division upon divorce. The Japanese court usually allocates one half of the marital assets to each party. However, if the earning of one of the couple is considerably higher than the other during marriage, the court may allocate more assets to the high earner.
   
   

   * If you forget to ask for division of assets before you get a divorce, unless you have waived your rights for getting your share of the marital assets, you can still request your ex-spouse for division of marital assets within 2 years from the date of divorce.
   * “Kosei nenkin,” employee’s pension and “Kyosai nenkin” mutual aid pension are also subject to division upon divorce. You can request division of pension during out-of-court negotiation, mediation, or litigation for divorce. If you forget division of pension in those procedures, you can still request it within 2 years from the date of divorce. When considering whether to request division of pension, it is important for you to get from a nearest “Nenkin Jimusho,” pension office, “Joho Tsuchisho,” a document showing how much money both you and your spouse have paid for pension during marriage. If you have paid more than your spouse, it is better not to request division, because it is not only your spouse’s pension but also your pension that are subject to division.
   
   If the couple has children, there will be more issues in addition to the above.
   

4. Custody/Parental Rights
   If the couple has children under 20 years old, they must decide which one of them will have the custody/parental rights of the children after divorce. There is no joint custody after divorce under Japanese laws. If the couple cannot reach an agreement, the court will decide which one of the parents will have the custody. The court is likely to give you custody if :
   
   1. You are currently living with the child after separation; and
   2. You have been the primary caretaker of the child.
   If the child is 15 years old or older, the court must hear the child’s opinion.
   
   
5. Child Support
   Custodial parent can ask non-custodial parent for payment of monthly child support. If parents cannot agree on the amount of child support, the custodial parent can ask the family court to determine the amount of monthly child support and to order the non-custodial parent to pay that amount to the custodial parent. The court typically determines the amount of child support according to the
   table prepared by a group of family court judges.
   
   
6. Visitation
   Non-custodial parent can ask custodial parent to let him/her see the children regularly. If the parties cannot agree whether the non-custodial parent should see the children or frequency, length, and/or mode of visitation, non-custodial parent can request the court to decide them. The Japanese court typically allows non-custodial parent to see his/her children once or twice a month.
   
   
   

International Divorce

1. Between Japanese and Foreign National
   If you are a foreign national married to a Japanese, you may wonder whether you can get a divorce in Japan. Japanese law recognizes all three types of divorce described above. However, whether such divorce is recognized in your home country depends upon the laws of your country. It is advisable to consult a lawyer qualified to practice in your home country under which procedure you should get a divorce and what procedures are necessary in order for your divorce to be recognized under the laws of your home country.
   
   There are many useful websites telling you what is required by the government of your home country to recognize foreign divorce. There are also websites where you can find and contact lawyers of your home country and contact them on the Internet, such as martindale.com.
   
   
2. Between Foreign Nationals
   The Japanese Family Court has jurisdiction over foreign couples if one of the couple lives in Japan. If the couple has the same nationality, the court will apply the laws of the country of which the couple has nationality. If the couple has different nationalities, but both live in Japan, the court will apply the laws of Japan.
   
   
3. When One Spouse is Living Abroad
   If one of the spouses is living in Japan but the other is living abroad, can they get a divorce in Japan?

If the couple agrees to divorce, they can get a divorce by submitting a divorce paper called “Rikon Todoke,” notification of divorce, to the local government. However, such divorce may not be recognized by the laws of your home country or the laws of the country where you live.
As of October, 2013, the Japanese court has limited jurisdiction over lawsuits for divorce filed by those living in Japan against their spouses living abroad. However, it has jurisdiction over lawsuits for divorce filed by those living abroad against their spouses living in Japan.

Spousal Support and Alimony

Married couple has obligation to financially support each other. If you have less income than your spouse, and he/she refuses to give you necessary financial support, you can apply for mediation at the family court to request spousal support. If you and your spouse cannot reach an agreement in the mediation, the court will decide whether your spouse needs to give you financial support and the amount according to the table created by the selected family court judges. The table shows rough amounts of spousal support based on the income of both parties and the number of children they have.

Under Japanese laws, after the couple divorced, their obligation to support each other ends. Therefore, even if one of them has need for financial support, he/she is not entitled to get it from his/her former spouse. However, the court sometimes awards a spouse who is old and without any source of income additional money in division of marital assets.

■　FAQs

1. Do I need a lawyer for the mediation?
   Mediation is a process created for people to negotiate through the mediators to resolve the conflict without lawyers. In fact, many people attend mediation without lawyers. However, some people who attended mediation without lawyers complain that they were mistreated by the mediators, or they did not have any meaningful discussion. As explained above, most mediators are lay people who lack knowledge of relevant laws, sociological or psychological expertise, and mediation management skills. If you are not represented by an attorney, you may even waiver your rights by making a mediation agreement without knowing you are doing so. If you do not have enough funds to hire a lawyer, you should at least consult one before you make a mediation agreement. When a large amount of money or valuable assets are involved, it is usually better to hire a lawyer because:
   
   
   1. The legal fees could be relatively small compared with the amount of money involved.
   2. Such cases are more likely to be litigated. You will most probably hire a lawyer for litigation. If you hire a lawyer anyway, you may feel better to be represented by one from the beginning.
      
      
2. Are there English-speaking mediators?
   In some family courts, there are a few English-speaking mediators. But their level of fluency varies. If you are not confident that you can make yourself understood in Japanese, you should call the family court if you can bring an interpreter. Or the court may ask you whether you need an interpreter and may appoint one for you. But you will have to pay the fee for the interpreter.
   
   
3. Are there any English-speaking judge?
   There are. If the judge can speak English, he/she might do so when he/she is acting as a mediator in the mediation. However, all official procedures must be conducted in Japanese in the Japanese court. Therefore, even if the judge can speak English, when he/she is conducting official procedures, he/she will only speak Japanese and will not interpret for you. Also, if you want to submit a document written in a foreign language, it must be accompanied with a Japanese translation. When you testify in court in a foreign language, the court will appoint a qualified interpreter and you must pay the fee for the interpreter in advance.
   
   
4. How long will it take to get a divorce in mediation?
   It depends on how quickly the parties reach an agreement. Typically, a mediation session is held once a month. Some couples reach an agreement after a few sessions. Others cannot reach an agreement at all at the mediation. After a few sessions, if the mediators find it difficult for the parties to reach an agreement, they will end the mediation, and one or both of the couple choose to litigate.
   
   According to the statistics made public by the court, in 2011, out of 31,139 divorces agreed in mediation, 11,539 were agreed within 3 months, 13,479 within 6 months. However, 1,180 took more than a year and more than 3,000 cases failed to reach agreements after 6 months or longer.
   
   
5. How long will it take to divorce in litigation?
   It depends on how many issue must be adjudicated and how complicated each issue is. Usually the larger the amount of money involved, the longer it takes.
   

■　Useful Information

Civil Code (Part IV and Part V)

Act on General Rules for Application of Laws