Divorce In Japan
Oct 10, 2015
Japan’s divorce system is quiet unique compared with the rest of the world. In Japan a registration system for divorce exist (“Divorce by Agreement”), not only Judicial Divorce processes.
According to the Japanese Civil Code, Chapter 2 – Marriage:
Article 763 A husband and wife may divorce by agreement.
Article 765 (1) Notification of divorce may not be accepted unless the divorce has been found not to violate the provision of paragraph (2) of Article 739 applied mutatis mutandis to the preceding Article, paragraph (1) of Article 819, or the provisions of any other laws and regulations.
(2) If notification of divorce has been accepted despite the violation of the provisions of the preceding paragraph, the effect of the divorce shall not be prevented because of this violation.
There are several means of obtaining a divorce in Japan, the main process being the following: (1) Divorce by agreement – whereby a married couple discuss and come to a divorce agreement themselves, then register their divorce with the Family Registration Department (Note: Article 763 above). (2) Divorce by conciliation – where a married couple fails to reach an agreement themselves, either party can petition the Family Court for divorce by conciliation. The Family Court with will provide a written record of divorce conciliation. (3) Divorce by trial – where a couple cannot reach an agreement by way of conciliation a trial is possible before the Family Court.
In the case of divorce it is important to consider a number of things including: property division, compensation, custody and child support.
Also for non-Japanese citizens seeking divorce in Japan can be more complicated.
Some of foreign countries will only recognize Judicial Divorce. In addition many jurisdictions have further prerequisites to establishing divorce such as a mandatory separation period before divorce, whereas Japan has no such requirement. Please kindly note that additional requirements for divorce recognition depends on the country you in which you wish your divorce to be recognized.
With regards to divorce procedures in Japan between person of different nationalities it is important to take note of the following sections from Japan’s Act on General Rules for Applications of Laws:
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 : 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.
Article 27 Article 25 shall apply mutatis mutandis to divorce; provided, however, that if either husband or wife is a Japanese national who has habitual residence in Japan, their divorce shall be governed by Japanese law.
As you see above, if you are a foreign national you need to consider also the nationality of your spouse and what might be deemed as you habitual residence. Though there are exceptions, habitual residence in Japan is usually deemed to be established if you and your spouse have stayed in Japan for more than 5 years. Where your habitual residence cannot be clearly established according to these terms it may be necessary for a divorce application to be transferred to the Ministry of Justice.
Please kindly note that as Japanese registration system is quite unique you may need to consult with the jurisdiction in which you wish your divorce to be recognized.
Given the issues of cross-jurisdictional recognition, it is advised that you seek specialist legal advice.
For further information please contact us via our ‘inquires’ page: https://ailaw.co.jp/en/inquiries/