Monday, September 22, 2008

Types of Divorce in Japan

The Japanese Divorce By Mutual Consent, is one of the easiest divorces in the world, if both parties agree. But if they don't, Japanese Civil Code Article 770-1 describes only five grounds for a contested divorce, and until a 1987 supreme court ruling, divorces were normally denied to the spouse "at fault":

* Infidelity (futei na koui); This could be just physical (furin 不倫) or it could be serious (uwaki 浮気) Either the husband or the wife can sue for divorce for adultery, and if the other party is found at fault, he or she may have to pay consolation money. (isharyou 慰謝料)

* Malicious abandonment (akui na iki), which means the failure, without justifiable cause, to fulfill the spousal duties of cohabitation, mutual cooperation and assistance. Some arguments can only be used by one or the other gender:

o to make enough to support them, even if the wife refuses to work.
* Whereabouts Unknown (shoushi). The whereabouts and status of a spouse are not known for over three years, regardless of cause; Another reliable source says that "it is unknown for more than three years whether or not the spouse is alive".
* Serious mental illness (seishinbyou); where there is no hope for recovery
* Serious misconduct (juudai na jiyu) on the part of one of the spouses making it difficult to continue the marriage.

"Other grave reasons" is a catch all which is often used as a substitute for irreconcilable differences (seikaku no fuitchi 性格の不一致) , although the later is not a specifically valid reason. It covers a wide spectrum of grounds such as cruelty, domestic violence, unreasonable behavior, incompatibility, loss of love in the marriage. The following are reported as valid reasons by a reliable source, but it is unclear in which category they belong.

* Refusal or neglect of marital sex. (JPNESE?) Apparently, only the husband can sue for divorce on this grounds.

* Refusal or neglect of financial support. (JPNESE?) Apparently only the wife can sue divorce on this grounds if the husband is unable

There are four types of divorce.

Divorce by mutual agreement (kyogi rikon)

This is where the parties involved would go to the town hall and simply register their divorce. The reasons do not matter, and do not need to fit into one of the above five categories. It requires both their seals and two witnesses to the document. This document contains a space to state who has custody of any minor (ie. under 20 year old) children. If there are minor children, the parties cannot divorce until who has custody is made clear. This is decided between them. Note that there is no joint custody in Japan - it is one parent or the other.

As with marriage registration, the foreign spouse need not be physically present at the ward office to register the divorce providing that the registration documents have been properly signed and sealed beforehand by both parties. Be warned, however, that the legality of this procedure in various countries is uncertain. (This excellent article gives some reasons and applies them to the UK: Non-Recognition of Japanese Consent Divorces in the U.K. (cached copy)) Also note that for a non-Japanese, a signature is acceptable, whereas for a Japanese, divorce would require a hanko. Since there is no way for the accepting government office to verify the foreigner's signature and the foreigner does not need to be present, this opens up the possibility of a forged Divorce By Mutual Consent application. (Japanese on the other hand have a registered hanko that can be verified for authenticity.) To protect against this possibility, a spouse, even a non-Japanese, can submit a form to prevent a divorce.

This page (in Japanese) talks a little about the history of the divorce by mutual consent (cached copy) and says that it has been around since Meiji 31. Alternately, a page from the US Embassy in Japan (cached copy), says that it has only been legal since January 1, 1990. But it is possible that this means only legal when one partner is a non-Japanese. Will update when I find out more.

From the Japanese Civil code, sent to someone else by a Professor of law in Tokyo, then to CRN:

After 1990, article 16 of "Law Concerning the Application of Laws in General" ("Horei" in Japanese) provides that "the Divorce shall be governed by Japanese law if the husband or wife is a Japanese who has the place of his or her permanent residence in Japan" Before 1990, there was no such provision in Horei instead, it provided that "Divorce shall be governed by the law of the husband's home country at the time of the facts, which caused the Divorce, happened" Therefore, as husband is Japanese in this case, Japanese law is applied even in 1985 and Kyogi Rikon is valid.

In cases where couples can't agree on terms for their separation, and hence cannot file for a Divorce by mutual agreement, there are basically three options open to them.

Divorce by mediation in a family court (chotei rikon)

This is divorce by arbitration in which the husband or wife request that the family court assist them with mediation. It is completed by applying for mediation by the family court. One party would typically apply to the family court, usually in the district of the other parties residence, and after monthly meetings come to some agreement concerning assets, alimony, custody, child support, etc.. These meetings are conducted in private.

If arbitration fails, the family court takes over and has the authority to render its own terms for the divorce. But note that if the court negotiates this divorce, they may simply ask you to sign the appropriate Divorce By Mutual Consent forms. The threat (that your own lawyer may emphasize to you) is that if you do not negotiate, the judge will issue a decree which will be even worse. You may be asked to sign these forms even before the agreement you negotiated is signed. You may not want to do that. Also, you may want to have a decree from a court so that you can go back to the court and claim that your partner is not abiding by the agreement. If the agreement is simply a personal contract, you might have to start legal proceedings all over again, which of course would take years.
Divorce by judgment of the family court (shimpan rikon)

This divorce is completed by a family court decision when divorce cannot be established by mediation. From now it becomes a public court case. Note that there is no such thing as a "no fault" divorce at this stage. If the family court's judgment is rejected by one of the parties, then an appeal can be lodged and the district court takes over the case.

Note that according to Civil Code 770-2, judges have absolute discretion to decide whether to grant a divorce or whether the marriage is proper in view of the circumstances. Also, divorce in court is time consuming. The 1987 case mentioned above took 35 years.

Divorce by judgment of a district court (saiban rikon)

Applying the Civil Code, the district court allocates assets and determines which party is responsible for the breakdown of the marriage. Once the case is decided, the court will issue a certified copy and certificate of settlement, to be attached to the Divorce Registration. Either party in the divorce has the right to appeal to a higher court against any decision made in a lower court, all the way up to the Supreme Court.

Defenses Against Divorce

A common defense used to prolong them is that "Having entered into the marriage consensually, I have a right not to be unilaterally divorced (rikon sarenai kenri)."

If you have an unsympathetic judge, fire your lawyer right before the judge in the case is rotated out, so you can miss the rotation. (Especially useful if the lawyer is not representing you the way you want to be represented.) The new judge, to a certain extent, will have to start all over and may be more sympathetic. This is a common tactic used by Japanese spouses.

The Japanese spouse will often use exaggerations or outright lies to claim you are at fault or give reason for a divorce. Despite a stern warning at the beginning of testimony, perjury is virtually never prosecuted or penalized. (Source for this is a Japanese lawyer.) It is not even clear that there is a law against it in civil cases. So it is easy to get away with almost anything. We even know of a case where the foreign spouse presented bank books and other evidence proving lies in court, but there was no penalty at all.
External References

* original reference

Q&A on Divorce

Q: Can foreign citizens be divorced in Japan?

A: Yes. However, foreign citizens must show evidence that they are able to be divorced in their country of nationality and that the procedures used in Japan are compatible with those of their home country.

Q: What are the residency requirements for filing?

A: At least one of the parties must be a legal resident of Japan. The court will not accept cases from couples who have traveled to Japan for the sole purpose of obtaining a divorce.

Q: Can a divorce be granted in absentia?

A: While both parties do not need to be present to file with a court and begin the procedures leading to a divorce, because of the nature of the conciliation process, the court will require the appearance by both parties for at least one joint hearing. But a divorce can also be granted if it is determined that the partner has abandoned the one filing for divorce. Typically this means the whereabouts and the status of the spouse have been unknown for at least 3 years. This could likely be prevented by regularly filing an anti-divorce form.


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