The below will explain in detail how divorce can be effected in Japan and the divorce procedures in the Japanese court system.
1 Five ways to divorce
There are the following five types of divorce methods in Japan.
① Divorce by agreement or paper divorce (Article 763 of the Civil Code of Japan)
② Divorce by court mediation (Article 244 of the Domestic Case Procedure Law of Japan)
③ Divorce by adjudication (Article 284 of the Domestic Case Procedure Law of Japan)
④ Divorce by settlement or by acknowledgement (Article 37, para. 1 of Personal Status Litigation Act of Japan)
⑤ Divorce by trial (Article 770 of the Civil Code of Japan)
Broadly speaking, about 90% of all divorces are those by an agreement, about 10% are divorce by court mediation, and about 1% are by trial. Divorce by Settlement occurs at the court trial and that by Acknowledgement is the divorce when the defendant agrees to divorce with the plaintiff.
Divorce by adjudication is very rare and is used for international couples for some specific reason.
Divorce by settlement happens after the plaintiff filed the trial and it is often lead by recommendation by the judge after intense allegation has been made by each party and the court is nearly reaching the conclusion as to issues such as custody and asset division.
2 Divorce by agreement
2-1 Procedures for divorce by agreement
As divorce by agreement or paper divorce without court involvement is possible in Japan, divorce can be effected by negotiating and submitting a divorce notification without filing a petition for divorce mediation or trial. In this case, a divorce is usually effected by submitting such notification after consultation and agreement between the relevant couple, but it is necessary to discuss consolation money, property, child support, and visitation.
Of course, if there is no child and the parties do not want asset division or consolation money, they can divorce by submitting a divorce notification alone. In Japan, in such cases, it is very unusually easy to divorce compared to other advanced countries.
2-2 How you can get divorced by agreement
In order to divorce by agreement, it is enough to submit a notice of divorce signed by parties to the municipal family register clerk. This is a simple procedure. However, there can be various legal problems.
The family register clerk does not confirm whether or not the two persons actually intend to divorce, so if the formality is met, the divorce notification will be simply accepted.
“Is it possible that one spouse forge the signature of the other and file the notification? Yes!! He or she can sign it and mail it to the family register clerk.
In fact, there are many people facing the problem after his or her spouse has filed a divorce notification without consent! Therefore, if there is a danger, you should file a request not to accept the divorce notification at the municipal office nearby.
2-3 How to File the Non-Acceptance of Notification of Divorce
① In order to file the Non-Acceptance of Notification of Divorce, you must file an application for non-acceptance at the municipal office where your registered domicile or residence is located.
② When such application has been made, the family register clerk does not accept the notification unless he/she confirms that the person filing it is that who requested the Non-Acceptance.
③ The family register clerk notifies the person who has made the request for non-acceptance when there is any notification from any person.
This rejection is valid until you withdraw it by yourself or submit a divorce notification by yourself.
Please note that you will not be able to submit a conditional notification.
If it is likely that you wife and husband to submit the notification to take advantage of the custody battle by submission of a notification in which she or he has the sole parental rights or custody, it is strongly recommended to file the above request and consult with professional support from a Japanese family lawyer.
In Japan, the divorce will be effective without involvement from the court or any public body and the above request may help you to avoid a chaotic and costly custody battle in Japan.2-4 How to create a proper divorce agreement
In the case of divorce, for example, if there is valuable real estate like a condominium, or stocks held and they are held during the marriage , it is necessary to distribute the asset or make the asset division.
If you have a child, you should decide what to do with your child’s custody, parental rights and visitation and child support.
If you can agree on the relevant matters you should make an agreement but, if two people cannot discuss and decide, you need a lawyer to prepare for a divorce agreement. In this case, it is not necessary to go to the court. For example, you need to pay 5,000,000 yen as or asset division in installments within three years, or 3 million yen as compensation by the end of next month. Such agreement must be prepared and signed by each.
However, there are disadvantages of this kind of execution of an agreement outside the court.
In the case of divorce mediation at the Japanese Family court (rikon choutei), a mediation record will be publicly created, and such has as big power called saimu-meigi or a title of debt. A title of debt is the authority to exercise the execution of the monetary claims.
Divorce agreement has no power for enforcement by the court and you need to go to court to get the title of debt for the payments if they are not made properly by the debtor.
In order to be able to enforce the obligation or debt, a title of debt must be created beforehand in the Japanese legal system.
There are ways to make a title of obligation outside the court for the divorce agreement. The notarial deed is the answer and your lawyer will handle that if necessary.
However, notarial deeds are subject to fees and take some time.
In contrast, the Japanese family court mediation can be held at the present of two parties and the parties can quickly conclude if they agree during negotiation. If there are needs for negotiation and discussion of matters such as asset division or custody or visitation, the family court mediation is very much advisable.
In addition, if you try to make an agreement, and the other party does not agree, you need to go to family court anyway if you want some conclusion. Then it would lead to a longer negotiation period if you try a divorce agreement to be executed outside the court.
If your lawyer recommends divorce by agreement, you have to be careful if it would lead to an actually quicker and better outcome. Some Japanese lawyers hate the court mediation since each session takes more than 2 or 3 hours but it could be the best way to handle the divorce case for clients.
3 What is the Japanese family court mediation for divorce or custody?
3-1 What is Japanese family court mediation or choutei for?
Under Japanese family law, even if agreement cannot be successfully made for divorce, a divorce lawsuit cannot be filed without filing such court mediation.
This is called the principle of mediation precondition. (This is described in Article 257 of Domestic Case Procedure Act of Japan.)
Why is it? The background is the idea that disputes over family matters should be resolved through “private discussions” in family court mediation, not through a method of litigation since the decision is better to be made by the relevant family members than to be made by a judge.
Mediation in Japan is a court proceeding that begins with the petition of a party, petitioner, and the other party will be the respondent who must join the court negotiation process to reach a conciliation. Divorce mediation is expected to conclude by family court coordination by relevant mediation commissioners.
At the Tokyo Family Court, mediation court dates are to be arranged approximately six times as to normal divorce cases. The mediation is the forum to make a reconciliation and if the parties hardly reconciliate the court will decide to close the case. Regardless of what the parties think, the court declares that it is over.
As you can imagine, mediation often fails when there is a conflict of parental rights and custody and if the parties disagree on the amount or the way of distribution of property or compensation for non-pecuniary damage (consolation money).
When a couple with a child is divorced, only one parent can hold the parental rights in Japan and if there is no other agreement as to the custody, such one parent can exercise all of the parental rights for the child. Because one party loses 100% of parental rights, there is a tendency for a couple not to be able to reconciliate as to the custody.
Divorce mediation cannot be achieved in such cases since the parents cannot agree on the parenting arrangements or visitation and child support.
On the other hand, if the distribution of property alone is at issue, it seems that a reasonable divorce mediation can be achieved only if reasonable lawyers work hard to prove the facts and case laws for their clients and parties hear the opinions of the relevant judge in charge of the family court meditation.
In Japan even if mediation is not successful, a settlement is often reached during a divorce trial (divorce lawsuit) by arrangements by the judge in charge of the trial.
The majority cases with lawyers for each party seem to have settled in the trial proceedings.
A divorce will be effected on the date of settlement at the court trail procedure in case two parties agree on the settlement terms, for example some parenting arrangements or visitation or ways of property distribution on which they could not reach reconciliation at the time of court mediation.
In case the parties wish to take the form of divorce by agreement in the family register they can do so by agreement at the court settlement on the court date for the divorce trial..
If the divorced settlement is made at the court trial procedure, the court will prepare a settlement record with specific terms in it and monetary claims can normally be enforceable if it is written down therein.
3-2 Is it necessary to mediate to divorce? Is a sudden divorce trial impossible?
3-2-1 Flow of divorce proceedings (divorce trials) after court mediation
As set forth above, if divorce by agreement is tried and found out that it is difficult, first of all, a petition for court mediation must be filed with the relevant Family Court.
Even if a divorce lawsuit is put in place without such filing, the court will put the case to a mediation process by their own discretion, and it would slow down the procedure all the more.
However, there are exceptions where the court considers it inappropriate to mediate the case first. For example, when the other party is missing and it is obvious that mediation will not be carried out, or when the other party is overseas, etc. If a party is too violent and dangerous to carry out mediation at the family court may also be an exception.
Once a divorce mediation is filed and has started, the petitioner who filed the case, can anytime withdraw the mediation case considering that the reconciliation at the mediation procedure would not be expected after facing the reaction from the respondent, the divorce trial will not be interrupted if it is filed by the petitioner.
3-2-2 How will the divorce mediation, which had been filed a long time ago, be dealt with?
If you file a divorce mediation 6 years ago and you would like to file the divorce trial this time, what would the court say?
Depending on the length of the year after the mediation procedure and on the negotiation during the period after that, the judge may order to mediate first.
If substantial negotiation has been going on by the proper lawyers’ work but any reconciliation could not be reached out, the judge would not give such an order since mediation is just a waste of time.
3-2-3 When a divorce is agreed but not asset division or distribution of property, not console money, what can I do?
Although divorce is agreed, and if there is a dispute over other matters, only divorce can be settled through mediation.
However, parental rights holder must be agreed and there should be complex issues for such cases regarding property ownership and so on. Accordingly it is advisable to seek professional advice on how to proceed.
3-2-4 When the other party is unable to mediate divorce due to dementia
If your spouse is having dementia or alike, he or she can be a party of the mediation or trial for divorce.
As long as he or she has the ability to make a divorce, even if he or she has a guardian under the civil code, you can file the case against him or her.
Some people may fear that they may not be able to abandon the spouse with dementia, but this is not true. If the cause of divorce is found such as domestic violence, infidelity or serious abuse, you can divorce.
With the aging of the population, more and more men and women want to divorce after they have become older than 60. Maybe more and more people want to use the remainder of their life without having stress with living with somebody you do not like or you cannot connect to.
If your spouse has some mental problem or illness and cannot decide on the divorce, the court may appoint a lawyer as a representative for him or her (Art 13 or Personal Status Litigation Act).
4 Divorce mediation in the case of international marriage (in the case of international divorce)
In the case of a divorce of an international marriage, the laws of Japan may not be applicable. Governing law is the question of which country’s laws can be applied to make decision by the court when divorce case is filed.
It should be noted that for example, in California, the couple living there may divorce under the laws of the State of California, but in Japanese courts, the couple is from an international marriage living in Japan, for example a French husband and a French wife, French law is the governing law and applied to the divorce. If a husband or a wife are Japanese and they live in Japan, Japanese law is the governing law.
In order to know the governing law, you need to seek professional advice from an experienced lawyer who specializes in international divorce.
Japanese international private law makes the rules for the governing law of divorce handled by the courts in Japan.
The very important thing is that divorce by agreement in Japan may not be regarded as divorce overseas and some foreigners should not use the agreement to get divorced.
5 Divorce by adjudication
In exceptional cases, a divorce is possible by adjudication at the Family Court.
5-1 Divorce by adjudication in lieu of court mediation
Even if the two parties agree to divorce, and there is a slight difference in opinion due to other issues, such as child support amount, the divorce mediation cannot be concluded. Under such circumstances it is not efficient that the family court cannot allow the divorce, and accordingly there is a way in case the court can give adjudication for divorce after considering various factors and equity of both parties.
This is referred to as a “adjudication in lieu of mediation.”
Such is made when the parties have not agreed on divorce and each party is allowed to show abjection to the court in two weeks, then the adjudication will not be effective at all. In this way a party has Veto power. As a result, there are not many cases where a divorce adjudication is made by the court.
However, in the case of international divorce cases, divorce by mediation or adjudication may be desireable and adjudication may be used in such cases.
Unless an objection is made, the outcome is the same as a final and binding judgment (Art 287 of the Domestic Case Procedure Act of Japan).
5-2 Cases of Divorce Adjudication
There is a case where there was an agreement on divorce and designation of a person with parental rights but there was a dispute over the distribution of property and the court ordered divorce and appoint a person with parental rights and payment of 3 million yen as distribution of property (April 20, 1967, Tokyo Family court).
Although the husband agrees to divorce but was hospitalized due to alcoholism, the court found that he clearly wanted the divorce at the final mediation date. The divorce and distribution of some property were ordered by adjudication. However, it is a special case where the court had some expectation for the non-objection on the asset division or distribution of the property (Please refer to October 18, 1973, Koriyama Branch of Fukushima Family Court).
In a case where a wife filed a petition for divorce after living separately for about 25 years and living together for only about 5 years, and where the husband did not appear unjustly in mediation and has not paid any alimony, the court ordered divorce by adjudication (October 7, 2009, Fukui Family Court). This case was special because the husband was extremely behaving in bad faith, after the family court evaluator did appoint the date of investigation and made multiple visits.
In general, when it is clear that the intention to divorce is obvious by each party and there is no disputes for property and custody then adjudication will be made for divorce but if the asset division or compensation or custody are conflicts the adjudication will not be made. When one party is extremely in bad faith and the other party could prove that the marriage relationship is irrecoverably broken the court may give the adjudication order for divorce for the sake of justice.
6 Decision divorce by divorce trial
6-1 How can divorce proceedings (divorce trials) take place?
If a statutory cause of divorce (Article 770 of the people) is recognized, divorce is permitted by a court order.
The cause of divorce is specified in Article 770 of the civil code of Japan, but the cause of divorce must be found by the relevant judge by evidence filed by the parties. Accordingly, you need a lawyer for your trial case.
6-2 Which court has the jurisdiction for divorce cases?
According to the land jurisdiction rules for divorce trials, the address or domicile of the parties have a general venue. Therefore, there exists jurisdiction in the family court in the place of the address of the plaintiff or defendant in the Japanese legal system.
For court mediation, jurisdiction is permitted by agreement for jurisdiction. For example, if the parties live outside of Toyo but the lawyers’ office exists in Tokyo and the parties agree on the jurisdiction of the mediation for divorce the mediation is allowed by the Tokyo Family court to take place but it is not the case with a divorce trial.
Usually, the competent jurisdiction exists in the family court of the vicinity of the plaintiff’s or defendant’s address, but if there is no address, the “residence” will be used in place and if the residence is not known, the jurisdiction is determined by “the last domicile”.
Nevertheless, if the jurisdiction is not decided, the Supreme Court rule prescribes as the “Chiyoda-ku, Tokyo” is deemed the domicile, and therefore Tokyo Family Court will be the court of competent jurisdiction.
6-3 What is the address or domicile in relation to divorce trials (divorce proceedings)?
When deciding jurisdiction, the term address or domicile legally means the place where a person really lives. It does not mean the address on the resident certificate.
Article 22 of the Civil Code of Japan states as follows:
Article 22 The principal place wherein a person lives shall be his/her domicile.
However, since there is a system of transfer, the original court can transfer the case filed to another jurisdictional court by petition or by the discretion of the judge for the purpose of avoiding significant lawsuit delays or equilibrium between the parties, considering the address of the party or the witness to be interrogated, or for the purpose of equilibrium between the parties (Article 7 of Personal Case Litigation Act). When a child is a minor, the child’s domicile or residence is taken into account. Therefore, if a child is small, the transfer often results in the court of the child’s domicile being the competent court for a divorce. When the parties request the transfer of jurisdiction, the burden of the defendant’s reply in the litigation and the convenience of collecting relevant evidence must be considered, but the domicile or residence of the child seems to be very important for the court decision.