In this article, I would like to write about divorce in Japan. If one of the spouses is a Japanese citizen living in Japan, Japanese law will be applied to various aspect of the divorce, including if you can get divorced or not, how to divide the marital property, if there will be compensation for mental suffering caused by divorce.
If one of the spouses is Japanese and the child has dual citizenship including that of Japan, Japanese law will be applied to the custody issue too.
On the other hand, if your home country (state) and that of your spouse is the same, the law of the home country (state) will be applied to your divorce. You can still get divorced in Japan, but you will need to show the law of your home country (state) to Japanese court.
Proceedings (Types of Divorce) under Japanese Law
Mutual Consent Divorce
Under Japanese law, there is a proceeding to get divorced simply by submitting a document to a local government office.
In this proceedings, husband and wife simply need to fill in a document called Divorce Report (“rikon todoke” in Japanese) and submit it to a local governmental office. Two witnesses need to sign the document to show that they are aware of the divorce, but nobody needs to go to court. In Japan, nearly 90% of divorce is through mutual consent divorce.
Even if you are a foreigner, Japanese local governmental office will accept Divorce Report submitted by you as long as Japanese law is applied to your divorce (i.e. your spouse is a Japanese citizen living in Japan). This will become a valid divorce in Japan.
However, it is uncertain whether your home country will acknowledge the validity of this divorce. As an example, U.S. Embassy and Consulate in Japan warns in its website that “the United States has no procedure for extra-judicial divorce and the legality of this procedure in various states in the U.S. is uncertain.”
Therefore, before deciding to get divorced in Japan through Mutual Consent divorce, it is necessary for you to check if your home country acknowledges validity of such divorce.
Divorce through Mediation
If you need to take court proceeding for divorce in Japan, generally you are required to first go through mediation at court.
Mediation at court will be handled by a Mediation Committee, which comprises of a judge and 2 citizens (one male and one female). They try to help you reach an agreement with your spouse on whether you divorce or not, and the terms of divorce.
If you reach an agreement, the agreement will be recorded in a court document called Mediation Record (chotei chosho in Japanese). This record has the same effect as judgment under Japanese law.
In case of international divorce, it is customary to write in the Mediation Record that it has the same effect as judgment so that foreign institutions will understand it.
Divorce through Litigation
If you and your spouse cannot reach an agreement in mediation, the mediation will end. If you still want to get divorced, you will need to file litigation at court for divorce.
The court will then review whether there is a ground for divorce, and if there is, issue a divorce judgement. The court can also decide relevant divorce terms such as how to divide the marital properties and child custody. Please see below for details.
Grounds for Divorce
Under Japanese law, you can get divorced if you and your spouse agree to divorce. There is no waiting period or minimum period you need to be separated. You can agree to divorce at any time.
On the other hand, if your spouse does not agree to divorce, you will need to have one of the statutory grounds to get divorced.
One typical ground for divorce is when your spouse has committed adultery. Another typical ground is when you and your spouse have lived separately for a long period (such as three years) and there is no possibility of reconciliation.
One thing to be noted is that if you are the person responsible for breaking the marriage (such as you are the party who committed adultery), you cannot request divorce from your side even after living separately for three years. Since adultery does not matter in some countries, foreigners living in Japan need to be careful about this.
Division of Properties
General rule under Japanese law is that each party has ownership to their respective property during marriage and to divide the property 50/50 at the time of divorce.
Properties that one of the parties inherited or was given from a third party during the marriage will be excluded. Properties that one of the parties had before marriage will be also excluded, but sometimes it is difficult to figure out which property was from before marriage especially with respect to cash (bank accounts).
Under Japanese law, only one of the parents has the parental right after divorce, and the other parent get visitation right.
This becomes a large issue in international divorce as most country in the world admit joint custody after divorce. If the parties can agree, the parties can decide which of them will have the parental right. If the parties cannot agree, ultimately the court will decide which party gets the parental right after divorce.
Generally, the court will look into which parent has been the main person to take care of the child(ren), how each parent plan to take care of the child(ren) if he/she gets the parental right, etc.
The party who did not get the parental right will get visitation right, but usually Japanese practice of visitation is limited such as once a month.
Of courses the parties can agree on more frequent visitation. In all of the international case I have handled, the parties have agreed on more frequent visitation than the Japanese practice.
Retaining a lawyer / Inquiries
It is advisable for you to retain a Japanese lawyer if you are a foreigner as you will need to know Japanese law and attend court mediation / litigation in Japan.
I have represented many foreigners in negotiation out of court and at court mediation and litigation.
Even when you need to take proceedings at Japanese court so that the divorced will be acknowledged in your home country, it is helpful to have discussions in advance out of court. If the divorce terms are agreed to out of court, the court proceedings (mediation) will be completed quite easily.